Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived: (i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent; (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto; (iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document; (iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party; (v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and (vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Lear Corp), Credit and Guarantee Agreement (Lear Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 4 Effective Date”) on which all of that the following conditions precedent have been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each Loan Party;
(b) Agent shall have received a counterpart of this Amendment, executed and delivered by the U.S. Borrower(i) Additional Term B-4 Lender, (ii) Additional Term B-5 Lender, (iii) Additional Term B-6 Lender and (iv) Consents from Lenders constituting the Required Lenders, provided that the Additional Term B-4 Lender, the other Additional Term B-5 Lender and the Additional Term B-6 Lender shall be deemed to have consented to this Amendment;
(c) Agent shall have received an executed Joinder entered into by the Additional Term B-6 Lender, Holdings and the Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided acknowledged by the Administrative Agent;
(iid) the General Administrative Agent shall have received an executed Acknowledgment Joinder entered into by the Additional Term B-5 Lender, Holdings and Consentthe Borrowers, in and acknowledged by the form set forth at the end of this Amendment, from each Loan Party signatory theretoAdministrative Agent;
(iiie) Agent shall have received an executed Joinder entered into by the General Additional Term B-4 Lender, Holdings and the Borrowers, and acknowledged by the Administrative Agent;
(f) Agent shall have received a customary legal opinion (including no conflicts with all indentures and other material debt documents of the Parent Borrower and its subsidiaries) (A) from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, (B) from ▇▇▇▇▇▇▇▇▇ Traurig LLP, California, Illinois, Massachusetts, and Texas counsel to the Loan Parties, (C) from ▇▇▇▇▇▇ PLC, Michigan counsel to the Loan Parties, (D) from Ice ▇▇▇▇▇▇, LLP, Indiana counsel to the Loan Parties, (E) from ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Maine counsel to the Loan Parties, and (F) from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Ohio counsel to the Loan Parties, in each case addressed to the Agent and the Term Lenders;
(g) Agent shall have received (ai) for distribution a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Term Lender which has delivered an executed counterpart Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of a duly authorized officer of each Loan Party dated the Amendment No. 4 Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Amendment No. 4 Effective Date or, if applicable, that no modifications have been made to such documents since, with respect to (aa) the subsidiaries of Albertsons Companies, LLC that are Subsidiary Guarantors, Safeway Inc. and the subsidiaries of Safeway Inc. that are Subsidiary Guarantors, January 30, 2015, (bb) Albertsons Companies, LLC, December 21, 2015, (cc) New ▇▇▇▇▇▇▇▇▇’▇, Inc. and its subsidiaries that are Subsidiary Guarantors (other than ASP Realty, LLC), December 21, 2015 and (dd) ASP Realty, LLC, January 28, 2016, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the General Administrative Agent incumbency and specimen signature of each officer executing this Amendment on or prior behalf of such Loan Party and countersigned by another officer as to the First incumbency and specimen signature of a duly authorized officer executing the certificate pursuant to clause (ii) above;
(h) Agent shall have received a certificate of an authorized officer of the Parent Borrower dated the Amendment No. 4 Effective Date certifying that (i) each of the representations and warranties made by any Loan Party in or pursuant to the Financing Agreements shall be, after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Amendment No. 4 Effective Date, except to the extent such representations and warranties expressly relate to an amendment fee equal to 1.00% earlier time, in which case such representations and warranties were true and correct in all material respects as of such earlier time; provided that each reference to the Term Lender’s outstanding Loan Agreement therein shall be deemed to be a reference to the Term Loan Agreement after giving effect to this Amendment; (ii) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and (iii) no event shall have occurred and no condition shall exist that has or may be reasonably to be likely to have a Material Adverse Effect;
(i) The Parent Borrower shall have paid (or have caused to be paid), (a) to the Amendment No. 4 Arrangers in immediately available funds, all fees owing to the Amendment No. 4 Arrangers in connection with arranging Term Loans on as separately agreed to in writing by Holdings and the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority LendersNo. 4 Arrangers, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedextent invoiced, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges of the Amendment No. 4 Arrangers and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transaction contemplated hereby (but limited, in the case of legal fees and expenses, to which the reasonable and documented fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP), (c) to the Administrative Agent, for the account of each Term B-6 Lender, a closing fee of 0.25% of such Loan Party is Lender’s Term B-6 Loans, (d) to the Administrative Agent, for the account of each Replacement Term B-5 Lender, a party or is closing fee of 0.25% of such Lender’s Replacement Term B-5 Loans and (e) to be the Administrative Agent, for the account of each Replacement Term B-4 Lender, a partyclosing fee of 0.25% of such Lender’s Replacement Term B-4 Loans;
(vi) Subject to subsection (h) above, the General Administrative Agent conditions precedent set forth in Section 4.2 of the Term Loan Agreement shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date been satisfied both before and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Borrowing and any simultaneous addition of any new U.S. Revolving Lenders pursuant (ii) after giving effect to Section 2.6 the establishment of the Existing Credit Term B-6 Loans, and the borrowings thereunder, on the Amendment No. 4 Effective Date, the Borrowers shall be in compliance with Section 2.8 of the Term Loan Agreement;
(k) will be not less than $700,000,000Agent shall have received a solvency certificate signed by the Chief Financial Officer of Holdings substantially in the form attached as Exhibit O to the Term Loan Agreement;
(l) Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases, satisfactions and releases or subordination agreements satisfactory to the Agent are being tendered concurrently with the Amendment No. 4 Effective Date or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(m) Agent shall have received a Committed Loan Notice for the Term Loans;
(n) Agent shall have received, at least five (5) Business Days prior to the Amendment No. 4 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been reasonably requested by the Lenders at least 10 days prior to the Amendment No. 4 Effective Date; and
(o) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property, and to the extent any Mortgaged Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto, and (ii) evidence of flood insurance as required by Section 9.4 of the Term Loan Agreement and the applicable provisions of the Collateral Documents.
Appears in 2 contracts
Sources: Term Loan Agreement (Safeway Stores 42, Inc.), Term Loan Agreement (Albertsons Companies, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date first written above (the “First Amendment Effective Date”) on which all upon the satisfaction (or written waiver by Required Lenders) of the following conditions precedent have been satisfied or waived:(in each case, subject to Section 15 of this Amendment):
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, Amendment duly executed and delivered by a duly authorized officer of the U.S. Borrower, Lenders constituting the other Borrowers, the Majority Required Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLoan Parties;
(iib) The Administrative Agent’s and the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end 2025 Term Loan Lenders’ receipt of this Amendment, from each Loan Party signatory thereto;
items (iii), (v) through (x) and (xii), below and the General Administrative Agent shall have received Lenders’ receipt of items (ai), (ii), (iii), (iv) for distribution to and (xii) below, each Term Lender which has delivered an properly executed counterpart by a Responsible Officer of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Dateapplicable Loan Party, an amendment fee equal to 1.00% each dated as of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that or, in the amendment fee is payable to case of certificates of governmental officials, a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to recent date before the First Amendment Effective Date for which invoices have been presentedDate) and each in form and substance reasonably satisfactory to the Required Lenders and their respective legal counsel:
(i) a Warrant (substantially in the form of Exhibit B attached hereto) (each an “Incremental Warrant”) issued to each 2025 Term Loan Lender, including all reasonable out-of-pocket expenses (including reasonable fees, charges duly executed and disbursements delivered by an Authorized Officer of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentHoldings;
(ivii) a Note executed by the General Administrative Agent shall have received Borrower in favor of each 2025 Term Loan Lender requesting a Note in the amount of such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of 2025 Term Loan Lender’s Commitment with respect to the 2025 Term Loans being made by such 2025 Term Loan Lender;
(iii) a Secretary’s certificate for each Loan Party certifying as to (A) true and complete copies of all Organization Documents of such Loan Party attached thereto, (B) resolutions of the General Administrative Agent may reasonably require Board of Directors or other organizational action authorizing execution, delivery and performance of this Amendment and all Loan Documents to which such Loan Party is a party executed in connection herewith, and (C) incumbency of officers (including specimen signatures) evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party executed in connection herewith;
(iv) certification from any applicable Governmental Authority as the Required Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and in any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a partyMaterial Adverse Effect, including certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(v) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the General Loan Parties, each addressed to the Administrative Agent and each 2025 Term Loan Lender and their successors and assigns, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) certificates of Responsible Officers of the Borrower Agent or the applicable Loan Parties either (A) identifying all consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against each such Loan Party of this Amendment and Loan Documents to which it is a party executed in connection herewith, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(vii) certificates of Responsible Officers of Holdings certifying that Holdings has reserved sufficient shares of Common Stock for issuance upon exercise of the Incremental Warrants;
(viii) a certificate signed by a Responsible Officer of the Borrower Agent certifying (A) that the conditions specified in Section 3(b) have received been satisfied and (B) as to the matters described in Section 3(f);
(ix) a certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Borrower Agent certifying that, after giving effect to the entering into the Loan Documents executed in connection with this Amendment and the consummation of all of the transactions set forth in this Amendment, (A) the Borrower is Solvent and (B) the Loan Parties, taken as a whole, are Solvent;
(x) a Borrowing Request with respect to the 2025 Term Loans;
(xi) evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice Required Lenders of the consummation (in compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) of the transactions set forth in this Amendment; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders may reasonably require.
(i) So long as requested by any 2025 Term Loan Lender at least five days prior to redeem all 2009 Notes outstanding on the First Amendment Effective Date Date, the Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower and has taken such (ii) so long as requested by the Administrative Agent or any 2025 Term Loan Lender at least ten days prior to the First Amendment Effective Date, the Borrower shall have provided to the Administrative Agent and each requesting 2025 Term Loan Lender the documentation and other steps information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws or Anti-Corruption Laws, including the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andPATRIOT Act.
(vid) the General Administrative Agent [Reserved].
(e) The Borrower shall have received evidence reasonably satisfactory paid the Amendment Fee in-kind to it that the aggregate principal amount each Lender party hereto in accordance with Section 2(b) of the Tranche A U.S. Revolving Credit Commitments this Amendment.
(f) Any fees required to be paid on or before the First Amendment Effective Date (after giving effect including, for the avoidance of doubt, the Amendment Fee) shall have been, or concurrently with the satisfaction of the requirements in this Section 3, will be, paid.
(g) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the minimum Revolving Administrative Agent and the 2025 Term Loan Lenders to the extent invoiced prior to or on the First Amendment Effective Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through such date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the 2025 Term Loan Lenders, respectively).
(h) [Subject to Section 15 of this Amendment, the] representations and warranties of the Loan Parties contained in Article VI of the Amended Credit Commitment Reduction of 33.33% Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and any simultaneous addition correct in all material respects (or in the case of any new U.S. Revolving Lenders representation or warranty subject to a materiality qualifier, true and correct in all respects) on and as of the First Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in the case of any representation or warranty subject to a materiality qualifier, true and correct in all respects) as of such earlier date.
(i) No Default or Event of Default shall have occurred and be continuing, or would result from the extension of the 2025 Term Loans or from the application of the proceeds thereof.
(j) The Borrower shall have paid all fees, charges and disbursements of the Administrative Agent (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower pursuant to Section 2.6 the terms of the Existing Amended Credit Agreement;
(k) will The Borrower shall have paid all fees, charges and disbursements of Coliseum (including fees, charges and disbursements of Debevoise & ▇▇▇▇▇▇▇▇ LLP, as advisors to Coliseum) required to be not less than $700,000,000reimbursed or paid by the Borrower pursuant to that certain Structuring Work Fee Letter, dated as of the date hereof, by and between the Borrower and Coliseum.
Appears in 2 contracts
Sources: Credit Agreement (Purple Innovation, Inc.), Credit Agreement (Purple Innovation, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on upon the date satisfaction (the “First Amendment Effective Date”or waiver in writing by each Lender) on which all of each of the following conditions precedent have been satisfied or waivedprecedent:
(ia) receipt by the General Borrower, the Additional Delayed Draw Borrower, the Guarantors, the Administrative Agent shall have received and the Lenders of a counterpart signature of the others to this Amendment, Amendment duly executed and delivered by a duly authorized officer each of the U.S. Borrower, the other BorrowersAdditional Delayed Draw Borrower, the Majority Lenders Guarantors, the Administrative Agent and Extending Lenders the Lenders;
(b) the hiring by Holdings of a Chief Restructuring Officer acceptable to each Lender in its sole and absolute discretion (the “CRO”), reporting directly to the extent required special restructuring committee of the board of directors of Holdings, to (i) oversee all aspects of daily and weekly cash flows, including both receivables and payables management (ii) be granted sole approval rights over all cash disbursements and (iii) develop and ensure compliance with the Weekly Budget;
(c) receipt by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” the Administrative Agent of the Closing Budget in a form as acceptable to the Lenders, collectively, in their sole and absolute discretion;
(d) receipt by the Administrative Agent of all notices, certificates, and other documentation provided by the Administrative AgentBorrower or any of its Affiliates, or any of its or their officers or directors, to Silicon Valley Bank pursuant to the SVB Loan Agreement since April 1, 2017, including any borrowing base certificates, summary accounts receivable and accounts payable agings, and inventory certificates;
(iie) receipt by the General Administrative Agent shall have received an executed Acknowledgment of a payoff letter from Silicon Valley Bank, in form and Consentsubstance satisfactory to each Lender in its sole and absolute discretion;
(f) receipt by the Administrative Agent of a Secretary’s Certificate, with respect to the Borrower, the Additional Delayed Draw Borrower and the Guarantors, in substantially the form delivered on the Restatement Date, in each case attaching resolutions of each such Person’s Board of Directors (or other managing body, in the form set forth at case of other than a corporation) then in full force and effect authorizing the end execution, delivery and performance of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a partytransactions contemplated hereby;
(vg) receipt by the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of a copy of a good standing certificate for each of the 2009 Notes as Borrower, the General Administrative Agent may reasonably requireAdditional Delayed Draw Borrower and the Guarantors, dated within 30 days of the date hereof, from the jurisdiction of formation for each such Person; and
(vih) receipt by the General Administrative Administration Agent shall have received evidence of an opinion of counsel to the Borrower, the Additional Delayed Draw Borrower and the Guarantors, in form and substance reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000in their sole discretion.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Xtant Medical Holdings, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 3 Effective Date”) on which all when, and only when, each of the following conditions precedent have been satisfied (or waived:waived by the Administrative Agent and each Lender party hereto):
(a) The Administrative Agent shall have received from (i) the General Required Lenders, (ii) Holdings and (iii) the Borrower a duly executed counterpart of this Amendment signed on behalf of such party (which may include facsimile or other electronic transmission of a signed signature page of this Amendment).
(b) The representations and warranties of each Loan Party set forth in Section 2 shall be true and correct in all material respects (or in all respects to the extent already qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification) on and as of the Amendment No. 3 Effective Date, with the same effect as though made on and as of such date; provided that to the extent such representations and warranties expressly relate to an earlier date, such representations and warranties shall be true and correct in all material respects (or in all respects to the extent already qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification) as of such earlier date.
(c) The Borrower shall have paid (i) all fees payable to any Lender, the Administrative Agent or any of their respective affiliates as agreed between such Lender or the Administrative Agent and the Borrower and (ii) all reasonable fees, expenses and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel for the Administrative Agent, incurred in connection with the preparation, negotiation and execution of this Amendment, in the case of clause (ii), to the extent invoiced at least three (3) Business Days prior to the date hereof.
(d) The CARES Act Loan Agreement shall have been executed by the Borrower, and the Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer copy of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000same.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective upon the satisfaction of the following conditions; provided that all such conditions are satisfied on or prior to December 31, 2009 (the date (that all such conditions are so satisfied, the “First Amendment No. 1 Effective Date”):
(a) on which all The Administrative Agent’s receipt of the following conditions precedent have been satisfied following, each of which shall be originals, or waivedelectronic copies or facsimiles followed promptly by originals (unless otherwise specified), each properly executed by a Responsible Officer of the applicable Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Borrower, Holdings, the Required Lenders, as determined the Majority Revolving Facility Lenders and the Majority Term Facility Lenders;
(ii) the FNIS Loan Party Guaranty substantially in the form of Exhibit I hereto, duly executed by FNIS and each FNIS Subsidiary Guarantor;
(iii) executed counterparts of the General Administrative Agent in its sole discretion) and Borrower Supplemental Agreement (b) together with all other fees and amounts due and payable on or prior schedules contemplated thereby, which schedules shall be reasonably satisfactory to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentAdministrative Agent);
(iv) a guaranty supplement substantially in the General form of Appendix I hereto or such other form of guaranty or guaranty supplement to guarantee the Guaranteed Obligations (as defined in the FNIS Credit Agreement) in form and substance reasonably satisfactory to the FNIS Administrative Agent shall have received such certificates of resolutions or other action(the “FNIS Credit Guaranty”), incumbency certificates and/or other certificates of Responsible Officers of each duly executed by Group Members that are Loan Party Parties immediately prior the Amendment No. 1 Effective Date;
(v) evidence (in form reasonably satisfactory to the Administrative Agent and the FNIS Administrative Agent, as the General Administrative Agent case may reasonably require evidencing be) of the identity, authority and capacity of each Responsible Officer thereof authorized of each Loan Party (including any FNIS Loan Party) executing this Amendment, the Borrower Supplemental Agreement, the FNIS Loan Party Guaranty or the FNIS Credit Guaranty;
(vi) such documents and certifications as the Administrative Agent or the FNIS Administrative Agent may reasonably require to act as evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vii) opinions of counsel to Holdings, the Borrower and FNIS addressed to the Administrative Agent and each Lender, providing legal opinions substantially similar to those set forth on Appendix II hereto (with standard exceptions and qualifications reasonably acceptable to the Administrative Agent);
(viii) opinions of counsel to Holdings, the Borrower and FNIS addressed to the FNIS Administrative Agent and each Consenting Lender that will receive FNIS Term Loans pursuant to the terms of the Debt Exchange Agreement, providing legal opinions substantially similar to those set forth on Appendix III hereto (with standard exceptions and qualifications reasonably acceptable to the FNIS Administrative Agent);
(ix) a certificate signed by a Responsible Officer of the Borrower (in connection with such person’s capacity as an officer of the Borrower and not personally) certifying as to the satisfaction of the conditions set forth in Section 14(f) and (g) of this Amendment;
(x) a certificate signed by a Responsible Officer of FNIS (in such person’s capacity as an officer of FNIS and not personally) attesting to the Solvency of FNIS and the Restricted Subsidiaries (taken as a whole) and of Holdings and the Group Members (taken as a whole) after giving effect to the FNIS Merger, this Amendment and each of the other transactions contemplated to occur on the Amendment No. 1 Effective Date;
(xi) copies (certified to be true and complete by the Borrower) of any amendments to the FNIS Merger Agreement and the disclosure schedules thereto;
(xii) a certificate signed by a Responsible Officer of FNIS (in such person’s capacity as an officer of FNIS and not personally) certifying as to the satisfaction of the conditions set forth in Section 14(h) of this Amendment;
(xiii) executed counterparts of Amendment No. 1 to the Guarantee and Collateral Agreement, which sets forth the provisions set forth in Section 12 hereof, from the Borrower, Holdings, each subsidiary of Holdings party thereto and the Administrative Agent;
(xiv) an acknowledgement and confirmation signed by a Responsible Officer of FNIS Merger Sub (A) acknowledging that (1) after giving effect to the FNIS Merger it shall continue to be a Loan Party, Group Member and Restricted Company under the Loan Documents with the same force and effect as if originally named therein as “Holdings”, (2) each reference to “Holdings” in the Loan Documents, or any schedule, exhibit, appendix, annex or addendum thereto, shall be deemed to be to it and (3) it shall be bound by all of the terms and provisions of the Loan Documents to which such Loan Party Holdings is a party or is and that it shall be deemed to have ratified and affirmed its continued obligations, liabilities and indebtedness of Holdings thereunder, and (B) confirming that the representations and warranties set forth in Section 13 of this Amendment shall be a partytrue and correct in all material respects on and as of the Amendment No. 1 Effective Date, except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(vxv) (A) a copy of the General Administrative Agent shall have received evidence reasonably satisfactory articles of organization, including all amendments thereto, of FNIS Merger Sub, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on good standing of FNIS Merger Sub as of a recent date, from such Secretary of State, (B) a certificate of the First Secretary or Assistant Secretary of FNIS Merger Sub dated the Amendment No. 1 Effective Date and has taken certifying (1) that attached thereto is a true and correct copy of the limited liability company agreement of FNIS Merger Sub as in effect on the Amendment No. 1 Effective Date and at all times since a date prior to the date of the resolutions described in clause (2) below, (2) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or other governing body of FNIS Merger Sub authorizing the execution, delivery and performance of the Loan Documents to which it is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (3) that the articles of organization of FNIS Merger Sub have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (A) above, and (4) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of FNIS Merger Sub, (C) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (B) above; and (D) such other steps in connection with the redemption of the 2009 Notes documents as the General Lenders or the Administrative Agent may reasonably requirerequest; and
(vixvi) evidence in form and substance reasonably satisfactory to the General Administrative Agent that each Consenting Lender shall have committed to purchase accounts receivable under the FNIS A/R Securitization Facility in an amount sufficient to satisfy the conditions set forth in Section 2(a) of this Amendment.
(b) All fees and expenses required to be paid on or before the Amendment No. 1 Effective Date shall have been paid in full in cash.
(c) The FNIS Merger Agreement and any material agreement relating thereto shall not have been altered, amended or otherwise changed or supplemented in a manner material and adverse to the Lenders or any condition therein waived in a manner material and adverse to the Lenders, in each case without the consent of the Administrative Agent (which shall not be unreasonably withheld or delayed). The FNIS Merger shall have been consummated, or substantially concurrently consummated, in accordance in all material respects with the terms of the FNIS Merger Agreement.
(d) There shall not have occurred between December 31, 2008 and the Amendment No. 1 Effective Date any event, occurrence, change, state of circumstances or condition which, individually or in the aggregate has had or is reasonably likely to have a “Material Adverse Effect” (as defined in the FNIS Merger Agreement and set forth for ease of reference in the annex attached hereto as Annex D) with respect to FNIS, Holdings or FNIS Merger Sub (in its capacity as the surviving entity of its merger with Holdings).
(e) The Lenders shall have received evidence reasonably satisfactory (i) audited consolidated financial statements of FNIS for the fiscal year ended December 31, 2008 and (ii) such financial information for periods ending after December 31, 2008 as shall be publicly available prior to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment No. 1 Effective Date (or as may be otherwise delivered to the Borrower pursuant to the FNIS Merger Agreement). The Lenders shall have received pro forma consolidated financial statements as to FNIS and its Subsidiaries (after giving effect to the minimum Revolving Credit Commitment Reduction FNIS Merger) for (x) the 12-month period ending on the last day of 33.33% the fiscal quarter most recently ended at least forty-five days prior to the Amendment No. 1 Effective Date and (y) the fiscal year ended December 31, 2008 and any simultaneous addition subsequent interim period, and forecasts of any new U.S. Revolving Lenders balance sheets, income statements and cash flow statements for (A) each fiscal quarter of 2009 and 2010 ended after the Amendment No. 1 Effective Date and (B) each fiscal year ending on December 31, 2009 through the fiscal year ending on December 31, 2013.
(f) The representations and warranties of the Borrower and Holdings contained in Section 13 of this Amendment shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(g) No Default shall exist with respect to FNIS, FNIS Merger Sub, Holdings and their respective Subsidiaries (including the Borrower) at the time of, or after giving effect to, the Restructuring Transactions and this Amendment.
(h) The representations and warranties of FNIS contained in Annex E attached hereto (and made by FNIS pursuant to Section 2.6 the Borrower Supplemental Agreement) shall be true and correct in all material respects on and as of the Existing Amendment No. 1 Effective Date, except to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date.
(i) The Debt Exchange Agreement shall have been duly executed by all the parties thereto and the Debt Exchange shall have been consummated, or substantially concurrently consummated, in accordance with the terms of the Debt Exchange Agreement.
(j) The FNIS Revolving Loan Purchases and the FNIS Term Loan Purchases (other than in respect of the Debt Exchange) described in Section 2 and Section 3 of this Amendment shall have been consummated, or substantially concurrently consummated, in accordance with such sections.
(k) The Administrative Agent shall have received the results of a recent lien search with respect to FNIS Merger Sub in jurisdictions in which filings are to be made pursuant to the Loan Documents, and such search shall reveal no Liens on any of the assets of FNIS Merger Sub except for Liens permitted by Section 7.1 of the Credit Agreement or discharged on or prior to the Amendment No. 1 Effective Date pursuant to documentation satisfactory to the Administrative Agent.
(l) Each document (including any Uniform Commercial Code financing statement) required by the Security Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the assets of FNIS Merger Sub which constitute Collateral, prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 7.1 of the Credit Agreement) will ), shall be not less than $700,000,000in proper form for filing, registration or recordation.
Appears in 2 contracts
Sources: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Metavante Technologies, Inc.)
Conditions to Effectiveness of Amendment. This (a) The amendments set forth in Part I of this Amendment (other than the amendments solely relating to transaction costs associated with the IPO referred to in clause (a)(iv)(B) of the “Consolidated EBITDA” definition and the corresponding reference in the “Excess Cash Flow” definition) shall become be effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:waived (the “First Effective Date”):
(i) the General The Administrative Agent (or its counsel) shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of (A) Holdings, (B) the U.S. BorrowerBorrower and (C) the Required Lenders;
(ii) The Borrower shall have paid all fees and expenses of the Administrative Agent, including the other Borrowers, the Majority Lenders reasonable fees and Extending Lenders expenses of counsel to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iiiii) After giving effect to the General Administrative Agent Amendment, no Default or Event of Default shall have received an executed Acknowledgment occurred and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;continuing; and
(iv) the General The Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party fees as separately agreed between the General Administrative Agent may reasonably require evidencing (or any of its Affiliates) and the identity, authority and capacity Borrower.
(b) The amendments set forth in Part II of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment (together with the amendments set forth in Part I solely relating to transaction costs associated with the IPO referred to in clause (a)(iv)(B) of the “Consolidated EBITDA” definition and the other Loan Documents to corresponding reference in the “Excess Cash Flow” definition) shall be effective on the date on which such Loan Party is a party all of the following conditions precedent have been satisfied or is to be a party;waived (the “Second Effective Date”):
(vi) the General Administrative Agent The conditions set forth in Section 10(a) above shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requirebeen satisfied; and
(viii) (A) The IPO shall have been consummated on or before September 30, 2004, and (B) the General Borrower shall have purchased, retired or redeemed (or made arrangements satisfactory to the Administrative Agent to do so; it being understood that open market purchases, a cash tender offer pursuant to documents provided to the Administrative Agent on or before the Second Effective Date and arrangements for redemptions pursuant to the Senior Subordinated Note Indenture are all satisfactory to the Administrative Agent) the Loans or the Senior Subordinated Notes in an aggregate principal amount not less than $75,000,000.
(c) The amendment set forth in Part III of this Amendment shall be effective on the date on which all of the following conditions precedent have been satisfied or waived (the “Third Effective Date”):
(i) The conditions set forth in Section 10(a) above shall have been satisfied; and
(ii) The Administrative Agent (or its counsel) shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders assignments entered into pursuant to Section 2.6 2.20) a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of the Existing Credit AgreementLenders with Term Loan Commitments.
(d) will be not less than $700,000,000The Administrative Agent shall notify the Borrower and each Lender (via IntraLinks or such other means reasonably determined by the Administrative Agent) of the occurrence of the First Effective Date, the Second Effective Date and the Third Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (Daramic, LLC), Credit Agreement (Polypore International, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 1 Effective Date”) on which all of that the following conditions precedent have been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenteach Loan Party;
(iib) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end a counterpart of this Amendment, from each Loan Party signatory theretoexecuted and delivered by the Term B-5 Lender;
(iiic) Agent shall have received a customary legal opinion (including no conflicts with all indentures and other material debt documents of the General Administrative Parent Borrower and its subsidiaries) (A) from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties, (B) from ▇▇▇▇▇▇▇▇▇ Traurig LLP, California, Illinois, Massachusetts, and Texas counsel to the Loan Parties, (C) from ▇▇▇▇▇▇ PLC, Michigan counsel to the Loan Parties, (D) from Ice ▇▇▇▇▇▇, LLP, Indiana counsel to the Loan Parties, (E) from ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Maine counsel to the Loan Parties, and (F) from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Ohio counsel to the Loan Parties, in each case addressed to the Agent and the Term B-5 Lenders;
(d) Agent shall have received (ai) for distribution to a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Term Lender which has delivered an executed counterpart Loan Party, certified, if applicable, as of this Amendment a recent date by the Secretary of State of the state of its organization, and a certificate as to the General Administrative Agent good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of a duly authorized officer of each Loan Party dated the Amendment No. 1 Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Amendment No. 1 Effective Date or, if applicable, that no modifications have been made to such documents since January 30, 2015 or prior November 23, 2015, as applicable, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of the Amendment and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the First incumbency and specimen signature of each officer executing the Amendment on behalf of such Loan Party and countersigned by another officer as to the incumbency and specimen signature of a duly authorized officer executing the certificate pursuant to clause (ii) above;
(e) Agent shall have received a certificate of an authorized officer of the Parent Borrower dated the Amendment No. 1 Effective Date certifying that (i) each of the representations and warranties made by any Loan Party in or pursuant to the Financing Agreements shall be, after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Amendment No. 1 Effective Date, except to the extent such representations and warranties expressly relate to an amendment fee equal to 1.00% earlier time, in which case such representations and warranties were true and correct in all material respects as of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed earlier time; provided that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment each reference to the General Administrative Agent on or prior Term Loan Agreement therein shall be deemed to be a reference to the time Term Loan Agreement after giving effect to this Amendment; (ii) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and (iii) no event shall have occurred and no condition shall exist that has or may be reasonably to be likely to have a Material Adverse Effect;
(f) The Parent Borrower shall have paid (or have caused to be paid), (a) to the General Administrative Agent has received executed counterparts of this Amendment from No. 1 Arrangers (as defined below) in immediately available funds, all fees owing to the Majority Lenders, Amendment No. 1 Arrangers in connection with arranging Amendment No. 1 as determined separately agreed to in writing by New Holdings (as defined below) and the General Administrative Agent in its sole discretion) Amendment No. 1 Arrangers and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedextent invoiced, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges of the Amendment No. 1 Arrangers and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transaction contemplated hereby (but limited, in the case of legal fees and expenses, to which such Loan Party is a party or is to be a partythe reasonable and documented fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP);
(vi) Subject to subsection (e) above, the General Administrative Agent conditions precedent set forth in Section 4.2 of the Term Loan Agreement shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date been satisfied both before and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Borrowing and (ii) after giving effect to the establishment of the Term B-5 Loans, and the borrowings thereunder, on the Amendment No. 1 Effective Date, the Borrowers shall be in compliance with Section 2.8 of the Term Loan Agreement;
(h) Agent shall have received a solvency certificate signed by the Chief Financial Officer of New Holdings substantially in the form attached as Exhibit O to the Term Loan Agreement;
(i) Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Liens and Liens for which termination statements and releases, satisfactions and releases or subordination agreements satisfactory to the Agent are being tendered concurrently with the Amendment No. 1 Effective Date or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(j) Agent shall have received a Committed Loan Notice for the Term B-5 Loans;
(k) Agent shall have received, at least five (5) Business Days prior to the Amendment No. 1 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been reasonably requested by the Lenders at least 10 days prior to the Amendment No. 1 Effective Date;
(l) Refinancing shall have been consummated with the proceeds from the Term B-5 Loans and Agent shall have received a payoff letter from the agent for the lenders under the NAI Credit Commitment Reduction of 33.33% Agreement, reasonably satisfactory in form and any simultaneous addition substance to the Agent evidencing that, upon receipt of any new U.S. Revolving Lenders pursuant to Section 2.6 payments specified therein, the NAI Credit Agreement has been or concurrently with the Effective Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the NAI Credit Agreement have been or concurrently with the Effective Date are being released; and
(m) The Agent shall have received reasonable evidence of both (i) the Existing Credit Agreementmerger of Albertson’s Holdings LLC with and into Albertsons Companies, LLC (“New Holdings”) will be not less than $700,000,000and (ii) the merger of NAI Holdings LLC with and into New Holdings.
Appears in 2 contracts
Sources: Term Loan Agreement (Safeway Stores 42, Inc.), Term Loan Agreement (Albertsons Companies, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on upon the date (the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied (the “Amendment No. 1 Effective Date”):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, or waivedelectronic copies or facsimiles followed promptly by originals (unless otherwise specified), each properly executed by a Responsible Officer of the applicable Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Company and the Required Lenders;
(ii) a guaranty substantially in the form of Exhibit G (either directly or via a guaranty supplement) or such other form of guaranty or guaranty supplement to guarantee the Guaranteed Obligations in form and substance reasonably satisfactory to the Administrative Agent and the Company, duly executed by eFunds, it being agreed that for so long as determined the eFunds Bonds are outstanding, eFunds shall guarantee such obligations only up to an amount that is permitted by the General Administrative Agent in its sole discretionindenture governing the eFunds Bonds;
(iii) executed counterparts of the Subsidiary Guaranty Amendment and the Company Supplemental Agreement (b) together with all other fees and amounts due and payable on or prior schedules contemplated thereby, which schedules shall be reasonably satisfactory to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentAdministrative Agent);
(iv) the General Administrative Agent shall have received such Pledge Agreement, duly executed by each Loan Party together with:
(A) certificates of resolutions or other action, incumbency certificates and/or other certificates of representing any certificated Pledged Equity referred to therein accompanied by undated stock powers executed in blank,
(B) a completed Perfection Certificate in the form attached hereto as Annex B dated the Amendment No. 1 Effective Date and executed by a Responsible Officers Officer of each Loan Party (or such other form as may be reasonably acceptable to the General Administrative Agent); and
(C) evidence reasonably satisfactory to the Administrative Agent may that the Liens (if any) indicated on a lien search with respect to each Loan Party in the jurisdiction where such Loan Party is located (within the meaning of Section 9-307 of the Uniform Commercial Code as in effect in the State of New York) either (1) with respect to the Company and its subsidiaries existing prior to the time of the eFunds Merger, are permitted by Section 7.01 or (2) with respect to eFunds and its subsidiaries existing at the time of the eFunds Merger, are disclosed on the schedules to the eFunds Merger Agreement or are otherwise permitted to exist by the eFunds Merger Agreement without giving the Company the right to refuse to close on the eFunds Merger as a result of the existence of such Liens;
(v) evidence (in form reasonably require evidencing satisfactory to the Administrative Agent) of the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such of each Loan Party is a party executing this Amendment, the Subsidiary Guaranty Amendment or is to be a partySubsidiary Guaranty, the Company Supplemental Agreement or any Collateral Document on the Amendment No. 1 Effective Date;
(vvi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date such documents and has taken such other steps in connection with the redemption of the 2009 Notes certifications as the General Administrative Agent may reasonably require; andrequire to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;
(vivii) opinions of counsel to the General Company addressed to each Agent and each Lender providing legal opinions substantially similar to those set forth on Annex C hereto (with standard exceptions and qualifications reasonably acceptable to the Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount Agent);
(viii) a certificate signed by a Responsible Officer of the Tranche A U.S. Revolving Credit Commitments on Company certifying as to the First Amendment Effective Date satisfaction of the conditions set forth in Section 15(f) and (g) of this Amendment;
(ix) a certificate attesting to the Solvency of the Company and the Restricted Subsidiaries (taken as a whole) after giving effect to the minimum Revolving Credit Commitment Reduction eFunds Transactions, this Amendment and each of 33.33% the other transactions contemplated to occur on the Amendment No. 1 Effective Date from the chief financial officer, treasurer or assistant treasurer of the Company; and
(x) copies (certified to be true and complete by the Company) of any amendments to the eFunds Merger Agreement and the disclosure schedules thereto.
(b) All fees and expenses required to be paid on or before the Amendment No. 1 Effective Date shall have been paid in full in cash.
(c) The eFunds Merger Agreement and any simultaneous addition material agreement relating thereto shall not have been altered, amended or otherwise changed or supplemented in a manner material and adverse to the Lenders or any condition therein waived in a manner material and adverse to the Lenders, in each case without the consent of the Arrangers (which shall not be unreasonably withheld or delayed). The eFunds Merger shall have been consummated, or substantially concurrently consummated, in accordance with the terms of the eFunds Merger Agreement.
(d) There shall not have occurred between December 31, 2006 and the Amendment No. 1 Effective Date any new U.S. Revolving event, occurrence, change, state of circumstances or condition which, individually or in the aggregate has had or is reasonably likely to have a “Material Adverse Effect” (as defined in the eFunds Merger Agreement and set forth for ease of reference in the annex attached hereto as Annex A).
(e) The Lenders shall have received (i) audited consolidated financial statements of eFunds for the fiscal year ended December 31, 2006 and (ii) such financial information for periods ending after December 31, 2006 as shall be publicly available prior to the Amendment No. 1 Effective Date (or as may be otherwise delivered to the Company pursuant to Section 2.6 the eFunds Merger Agreement). The Lenders shall have received pro forma consolidated financial statements as to the Company and its Subsidiaries, and forecasts of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Amendment No. 1 Effective Date and on an annual basis for each year thereafter until the Maturity Date.
(f) The representations and warranties of the Existing Company contained in Section 14 of this Amendment and the representations and warranties of the Company and each other Borrower contained in Article 5 of the Credit AgreementAgreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that the only representations involving eFunds and its Subsidiaries, the making of which shall be a condition to the effectiveness of this Amendment, shall be (A) will be not less the representations and warranties made by or with respect to eFunds or its Subsidiaries in the eFunds Merger Agreement as are material to the interests of Lenders, but only to the extent that the Company has the right to terminate its obligations under the eFunds Merger Agreement as a result of a breach of such representations and warranties in the eFunds Merger Agreement and (B) the representations and warranties set forth in Sections 5.02 (other than $700,000,000clause (c)(ii) thereof), 5.04, 5.12 and 5.15 of the Credit Agreement (as amended by this Amendment).
(g) Subject to clause (f) above, no Default shall exist with respect to the Company and its Subsidiaries at the time of, or after giving effect to, the eFunds Transactions and this Amendment.
Appears in 2 contracts
Sources: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Fidelity National Information Services, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution from each Existing Term Loan Lender with a Tranche B-1 Term Loan Commitment and from Additional Tranche B-1 Term Loan Lenders having Additional Tranche B-1 Term Loan Commitments equal in principal amount to the amount of Existing Term Loans held by Non-Consenting Existing Term Loan Lenders and Post-Closing Option Lenders, (ii) from the Administrative Agent, (iii) from the Required Lenders and (iv) from the Borrower and each Term Lender which has delivered an executed Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrower shall have paid to all Existing Term Loan Lenders on or prior to the First Amendment No. 1 Effective Date, an amendment fee equal to 1.00% simultaneously with the making of such Term Lender’s outstanding Tranche B-1 Term Loans under the Credit Agreement, all accrued and unpaid interest on the First Existing Term Loans to, but not including, the Amendment No. 1 Effective Date;
(c) The Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Credit Parties. The Borrower, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinion;
(d) The Borrower shall have paid (i) the Amendment No. 1 Arrangers the fees in the amounts previously agreed in writing to be received on the Amendment No. 1 Effective Date and (it being agreed that ii) the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses (including including, without limitation the reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Administrative Agent and the Amendment No. 1 Arrangers) required of the Administrative Agent for which invoices have been presented prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe Amendment No. 1 Effective Date;
(ive) At the General Administrative Agent shall have received such certificates time of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (immediately after giving effect to the minimum Revolving Amendment no Default or Event of Default shall have occurred and be continuing; and
(f) The Administrative Agent (or its counsel) shall have received (A) a certificate of each of (x) Holdings and the Borrower, dated as of the Closing Date, substantially in the form of Exhibit E to the Credit Commitment Reduction Agreement, with appropriate insertions, executed by any Authorized Officer and the Secretary or any Assistant Secretary of 33.33% Holdings and the Borrower, as applicable, and attaching the documents referred to in the following clause (B) and (B) (x) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrower authorizing (I) the execution, delivery, and performance of this Amendment (and any simultaneous addition of any new U.S. Revolving Lenders pursuant agreements relating thereto) to Section 2.6 which it is a party and the performance of the Existing obligations under the Amended Credit AgreementAgreement and (II) will be not less than $700,000,000in the case of the Borrower, the extensions of credit contemplated hereunder, (y) the Certificate of Incorporation and By-Laws, Certificate of Formation and Operating Agreement or other comparable organizational documents, as applicable, of Holdings and the Borrower and (z) signature and incumbency certificates (or other comparable documents evidencing the same) of the Authorized Officers of Holdings and the Borrower executing the Credit Documents to which it is a party.
Appears in 2 contracts
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.), First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of December 29, 2018 upon the date (the “First Amendment Effective Date”) on which all satisfaction of each of the following conditions precedent have been satisfied or waived:(the “Sixth Amendment Effective Date”):
(ia) Each party hereto shall have executed and delivered this Amendment to Agent;
(b) Agent shall have received fully executed copies, in form and substance reasonably satisfactory to Agent, of an amendment to the General Administrative Term Loan Agreement and an amendment to the fee letter delivered in connection therewith, each dated as of the date hereof;
(c) Agent shall have received a counterpart of this Amendmentfully executed copy, executed in form and delivered by a duly authorized officer substance reasonably satisfactory to Agent, of the U.S. BorrowerConsent and Amendment No. 1 to Intercreditor Agreement, dated as of the other Borrowersdate hereof, the Majority Lenders between Agent and Extending Lenders to the extent required Term Loan Agent, together with a fully executed copy of an acknowledgement and consent thereto executed by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenteach Borrower and each Guarantor;
(iid) Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of resolutions of the General Administrative board of directors (or other equivalent governing body or member) of Company authorizing the execution, delivery and performance of this Amendment and amendment described in clause (b) above;
(e) All proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be reasonably satisfactory to Agent and its legal counsel;
(f) Agent shall have received an executed Acknowledgment payment of all fees payable to Agent and Consent, in Lenders as of the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Sixth Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment including pursuant to the General Administrative Agent on or prior to Fee Letter, dated as of the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersdate hereof, as determined by the General Administrative Agent in its sole discretion) between Company and (b) Agent, and all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) Agent and its counsel required to be reimbursed or paid by any pursuant to the Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps Agreement in connection with the redemption preparation, execution and delivery of the 2009 Notes as Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith that have been invoiced on or before the General Administrative Agent may reasonably requiredate hereof; and
(vig) the General Administrative Agent No Default or Event of Default shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% occurred and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000continuing.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (School Specialty Inc)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 6 Effective Date”) on which all of that the following conditions precedent have been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each Loan Party;
(b) the U.S. BorrowerAgent shall have received (x) a counterpart of this Amendment, executed and delivered by any Additional 2017-1 Term B-4 Lender, Additional 2017-1 Term B-5 Lender or Additional 2017-1 Term B-6 Lender and (y) Consents from Lenders constituting the other BorrowersRequired Lenders, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Additional 2017-1 Term B-4 Lender, Additional 2017-1 Term B-5 Lender may signify its consent or Additional 2017-1 Term B-6 Lender shall be deemed to have consented to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentAmendment;
(iic) the General Administrative Agent shall have received an executed Acknowledgment Joinder entered into by any Additional 2017-1 Term B-6 Lender, Holdings and Consentthe Borrowers, in and acknowledged by the form set forth at the end of this Amendment, from each Loan Party signatory theretoAgent;
(iiid) the General Administrative Agent shall have received an executed Joinder entered into by any Additional 2017-1 Term B-5 Lender, Holdings and the Borrowers, and acknowledged by the Agent;
(e) the Agent shall have received an executed Joinder entered into by any Additional 2017-1 Term B-4 Lender, Holdings and the Borrowers, and acknowledged by the Agent;
(f) the Agent shall have received a customary legal opinion (including no conflicts with all indentures and other material debt documents of the Parent Borrower and its subsidiaries) (A) from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (B) from ▇▇▇▇▇▇▇▇▇ Traurig LLP, California, Illinois, Massachusetts, and Texas counsel to the Loan Parties, in each case addressed to the Agent and the Term Lenders;
(g) the Agent shall have received (ai) for distribution a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Term Lender which has delivered an executed counterpart Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of a duly authorized officer of each Loan Party dated the Amendment No. 6 Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Amendment No. 6 Effective Date or, if applicable, that no modifications have been made to such documents since December 23, 2016, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the General Administrative Agent incumbency and specimen signature of each officer executing this Amendment on or prior behalf of such Loan Party and countersigned by another officer as to the First incumbency and specimen signature of a duly authorized officer executing the certificate pursuant to clause (ii) above;
(h) the Agent shall have received a certificate of an authorized officer of the Parent Borrower dated the Amendment No. 6 Effective Date certifying that (i) each of the representations and warranties made by any Loan Party in or pursuant to the Financing Agreements shall be, after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Amendment No. 6 Effective Date, except to the extent such representations and warranties expressly relate to an amendment fee equal to 1.00% earlier time, in which case such representations and warranties were true and correct in all material respects as of such earlier time; provided that to the extent any such representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty is true and correct in all respects; provided, further that each reference to the Term Lender’s outstanding Loan Agreement therein shall be deemed to be a reference to the Term Loan Agreement after giving effect to this Amendment; (ii) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and (iii) no event shall have occurred and no condition shall exist that has or may be reasonably to be likely to have a Material Adverse Effect;
(i) the Parent Borrower shall have paid (or have caused to be paid), (a) to the Amendment No. 6 (2017-1) Arrangers (as defined herein) in immediately available funds, all fees owing to the Amendment No. 6 (2017-1) Arrangers in connection with arranging Term Loans on as separately agreed to in writing by Holdings and the First Amendment Effective Date No. 6 (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion2017-1) Arrangers and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedextent invoiced, including all reasonable and documented out-of-pocket expenses of the Amendment No. 6 (including reasonable fees, charges 2017-1) Arrangers and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transaction contemplated hereby (but limited, in the case of legal fees and expenses, to which such Loan Party is a party or is to be a partythe reasonable and documented fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP);
(vj) subject to subsection (h) above, the General Administrative Agent conditions precedent set forth in Section 4.2 of the Term Loan Agreement shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date been satisfied both before and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction Borrowing;
(k) the Agent shall have received a solvency certificate signed by the Chief Financial Officer of 33.33% and any simultaneous addition Holdings substantially in the form attached as Exhibit O to the Term Loan Agreement;
(l) the Agent shall have received results of any new U.S. Revolving Lenders pursuant searches or other evidence reasonably satisfactory to Section 2.6 the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Existing Credit AgreementLoan Parties, except for Permitted Liens and Liens for which termination statements and releases, satisfactions and releases or subordination agreements satisfactory to the Agent are being tendered concurrently with the Amendment No. 6 Effective Date or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(m) will be not less than the Agent shall have received a Committed Loan Notice for the Term Loans;
(n) the Agent shall have received, at least five (5) Business Days prior to the Amendment No. 6 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the PATRIOT Act, that has been reasonably requested by the Lenders at least 10 days prior to the Amendment No. 6 Effective Date;
(o) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property, and to the extent any Mortgaged Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto, and (ii) evidence of flood insurance as required by Section 9.4 of the Term Loan Agreement and the applicable provisions of the Collateral Documents; and
(p) the Agent shall have received, prior to or substantially concurrently with the effectiveness of this Amendment, a prepayment of 2016-2 Term B-4 Loans in an aggregate principal amount of $700,000,000250,000,000.
Appears in 2 contracts
Sources: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (SSI - AK Holdings, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution (I) from each Cashless Option Tranche B-2 Lender and (II) from Additional Tranche B-3 Term Loan Lenders having Additional Tranche B-3 Term Loan Commitments equal in principal amount to each the principal amount of Existing Term Lender which has delivered an executed Loans held by Non-Consenting Existing Tranche B-2 Term Loan Lenders and Post-Closing Option Lenders, (ii) from the Administrative Agent, and (iii) from the Borrower and Holdings, either (x) a counterpart of this Amendment (or, in the case of such Cashless Option Tranche B-2 Lenders, a Consent to Amendment No. 4) signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrower shall have paid to all Existing Term Loan Lenders on or prior to the First Amendment No. 4 Effective Date, an amendment fee equal to 1.00% simultaneously with the making (or deemed making) of such Term Lender’s outstanding Tranche B-3 Term Loans under the Credit Agreement, all accrued and unpaid interest on the First Existing Term Loans to, but not including, the Amendment No. 4 Effective Date;
(c) The Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Credit Parties. The Borrower, Holdings and the Administrative Agent hereby instruct such counsel to deliver such legal opinion;
(d) The Borrower shall have paid (i) the Amendment No. 4 Arrangers the fees in the amounts previously agreed in writing to be received on the Amendment No. 4 Effective Date and (it being agreed that ii) the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses (including including, without limitation the reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Administrative Agent and the Amendment No. 4 Arrangers) required of the Administrative Agent for which invoices have been presented prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe Amendment No. 4 Effective Date;
(ive) The representations and warranties set forth in Section 2 above shall be true and correct;
(f) The Administrative Agent (or its counsel) shall have received (A) a certificate of each of (x) Holdings and the Borrower, dated as of the Closing Date, substantially in the form of Exhibit E to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer and the Secretary or any Assistant Secretary of Holdings and the Borrower, as applicable, and attaching the documents referred to in the following clause (B) and (B) (w) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrower authorizing (I) the General execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it is a party and the performance of the obligations under the Amended Credit Agreement and (II) in the case of the Borrower, the extensions of credit contemplated hereunder, (x) the Certificate of Incorporation and By-Laws or other comparable organizational documents, as applicable, of Holdings and the Borrower, (y) signature and incumbency certificates of the Authorized Officers of Holdings and the Borrower executing the Credit Documents to which it is a party, and (z) a good standing certificate from the relevant Governmental Authority of the jurisdiction of organization of the Borrower and Holdings, dated the Amendment No. 4 Effective Date or a recent date prior thereto; and
(g) The Administrative Agent shall have received such certificates a Notice of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer Borrowing in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount respect of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to B-3 Term Loans in accordance with Section 2.6 2.3 of the Existing Amended Credit Agreement) will be not less than $700,000,000.
Appears in 2 contracts
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.), First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 5 Effective Date”) on which all of that the following conditions precedent have been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenteach Loan Party;
(b) the Agent shall have received (x) a counterpart of this Amendment, executed and delivered by the (i) 2016-2 Additional Term B-4 Lender, (ii) 2016-2 Additional Term B-5 Lender and (iii) 2016-1 Additional Term B-6 Lender and (y) Consents from Lenders constituting the General Administrative Required Lenders, provided that the 2016-2 Additional Term B-4 Lender, the 2016-2 Additional Term B-5 Lender and the 2016-1 Additional Term B-6 Lender shall be deemed to have consented to this Amendment;
(c) the Agent shall have received an executed Acknowledgment Joinder entered into by the 2016-1 Additional Term B-6 Lender, Holdings and Consentthe Borrowers, in and acknowledged by the form set forth at the end of this Amendment, from each Loan Party signatory theretoAgent;
(iiid) the General Administrative Agent shall have received an executed Joinder entered into by the 2016-2 Additional Term B-5 Lender, Holdings and the Borrowers, and acknowledged by the Agent;
(e) the Agent shall have received an executed Joinder entered into by the 2016-2 Additional Term B-4 Lender, Holdings and the Borrowers, and acknowledged by the Agent;
(f) the Agent shall have received a customary legal opinion (including no conflicts with all indentures and other material debt documents of the Parent Borrower and its subsidiaries) (A) from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (B) from ▇▇▇▇▇▇▇▇▇ Traurig LLP, California, Illinois, Massachusetts, and Texas counsel to the Loan Parties, in each case addressed to the Agent and the Term Lenders;
(g) the Agent shall have received (ai) for distribution a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Term Lender which has delivered an executed counterpart Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority and (ii) a certificate of a duly authorized officer of each Loan Party dated the Amendment No. 5 Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Amendment No. 5 Effective Date or, if applicable, that no modifications have been made to such documents since, with respect to (aa) the subsidiaries of Albertsons Companies, LLC that are Subsidiary Guarantors and Safeway Inc. and the subsidiaries of Safeway Inc. that are Subsidiary Guarantors, January 30, 2015, (bb) Albertsons Companies, LLC, December 21, 2015, (cc) New ▇▇▇▇▇▇▇▇▇’▇, Inc. and its subsidiaries that are Subsidiary Guarantors (other than ASP Realty, LLC, Giant of Salisbury, Inc. and Collington Services LLC), December 21, 2015, (dd) ASP Realty, LLC, January 28, 2016 and (ee) Giant of Salisbury, Inc. and Collington Services LLC, November 16, 2016 (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the General Administrative Agent incumbency and specimen signature of each officer executing this Amendment on or prior behalf of such Loan Party and countersigned by another officer as to the First incumbency and specimen signature of a duly authorized officer executing the certificate pursuant to clause (ii) above;
(h) the Agent shall have received a certificate of an authorized officer of the Parent Borrower dated the Amendment No. 5 Effective Date certifying that (i) each of the representations and warranties made by any Loan Party in or pursuant to the Financing Agreements shall be, after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Amendment No. 5 Effective Date, except to the extent such representations and warranties expressly relate to an amendment fee equal to 1.00% earlier time, in which case such representations and warranties were true and correct in all material respects as of such earlier time; provided that to the extent any such representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty is true and correct in all respects; provided, further that each reference to the Term Lender’s outstanding Loan Agreement therein shall be deemed to be a reference to the Term Loan Agreement after giving effect to this Amendment; (ii) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and (iii) no event shall have occurred and no condition shall exist that has or may be reasonably to be likely to have a Material Adverse Effect;
(i) The Parent Borrower shall have paid (or have caused to be paid), (a) to the Amendment No. 5 (2016-2) Arrangers (as defined herein) in immediately available funds, all fees owing to the Amendment No. 5 (2016-2) Arrangers in connection with arranging Term Loans on as separately agreed to in writing by Holdings and the First Amendment Effective Date No. 5 (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion2016-2) Arrangers and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedextent invoiced, including all reasonable and documented out-of-pocket expenses of the Amendment No. 5 (including reasonable fees, charges 2016-2) Arrangers and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transaction contemplated hereby (but limited, in the case of legal fees and expenses, to which such Loan Party is a party or is to be a partythe reasonable and documented fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP);
(vi) Subject to subsection (h) above, the General Administrative Agent conditions precedent set forth in Section 4.2 of the Term Loan Agreement shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date been satisfied both before and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction Borrowing;
(k) the Agent shall have received a solvency certificate signed by the Chief Financial Officer of 33.33% and any simultaneous addition Holdings substantially in the form attached as Exhibit O to the Term Loan Agreement;
(l) the Agent shall have received results of any new U.S. Revolving Lenders pursuant searches or other evidence reasonably satisfactory to Section 2.6 the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Existing Credit AgreementLoan Parties, except for Permitted Liens and Liens for which termination statements and releases, satisfactions and releases or subordination agreements satisfactory to the Agent are being tendered concurrently with the Amendment No. 5 Effective Date or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(m) will be not less than $700,000,000the Agent shall have received a Committed Loan Notice for the Term Loans;
(n) the Agent shall have received, at least five (5) Business Days prior to the Amendment No. 5 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the PATRIOT Act, that has been reasonably requested by the Lenders at least 10 days prior to the Amendment No. 5 Effective Date; and
(o) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property, and to the extent any Mortgaged Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto, and (ii) evidence of flood insurance as required by Section 9.4 of the Term Loan Agreement and the applicable provisions of the Collateral Documents.
Appears in 2 contracts
Sources: Term Loan Agreement (Safeway Stores 42, Inc.), Term Loan Agreement (Albertsons Companies, Inc.)
Conditions to Effectiveness of Amendment. This Amendment Amendment, including the amendments set forth in Section 2 shall become effective and the provisions set forth in Section 2 shall become operative on the date (the “First Amendment No. 3 Effective Date”) on which all each of the following conditions precedent have been are satisfied or waivedwaived by each applicable party:
(a) The Administrative Agents shall have received executed signature pages to this Amendment from the Required Lenders, Holdings, the Borrowers and each other Credit Party;
(i) the General The representations and warranties set forth herein shall true and correct in all material respects except that any representation and warranty that is qualified or subject to a “material adverse effect”, “material adverse change” or similar term or qualification is true and correct in all respects) and (ii) after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing;
(c) The Administrative Agent Agents shall have received a counterpart executed copies of this Amendmenteach of the Sponsor Secured Note Documents (except those to be delivered post-closing), executed by each party thereto and, in each case, in form and delivered by a duly authorized officer substance reasonably satisfactory to the Administrative Agents and the Borrower shall have received, or shall receive substantially contemporaneously with the occurrence of the U.S. BorrowerAmendment No. 3 Effective Date, $27,500,000 of gross cash proceeds (less fees and expenses) in respect of the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentSponsor Secured Note;
(d) The Administrative Agents shall have received, each in form and substance satisfactory to the Administrative Agents, (i) the Revolving Loan Intercreditor Agreement and (ii) a joinder to the General Administrative Agent Intercreditor Agreement (the “Intercreditor Joinder”) with respect to the addition of the Sponsor Secured Note and the obligations of the Borrowers thereunder, and each such agreement shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on become effective concurrently with or prior to the First effectiveness of this Amendment;
(e) The Borrowers shall have paid the US Administrative Agent, for the account of each Lender that consents to this Amendment Effective Dateand provides its signature page hereto on or before 5:00 p.m. New York time, February 18, 2016, a consent fee (the “Consent Fee”) in an amendment fee amount equal to 1.000.125% of each such Term consenting Lender’s outstanding Term Loans on the First Amendment Effective Date Revolving Credit Commitment (it being agreed understood that the amendment fee is payable Borrowers shall have no obligation to a Term Lender only pay the Consent Fee if such Term Lender has delivered an executed counterpart the Amendment No. 3 Effective Date does not occur); and
(f) The Borrower shall have paid the reasonable and documented out-of-pocket costs and expenses of the Administrative Agents in connection with this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required presented at least two Business Days prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment No. 3 Effective Date (after giving effect including the reasonable and documented fees, disbursements and other charges of ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP as counsel to the minimum Revolving Credit Commitment Reduction of 33.33% US Administrative Agent and any simultaneous addition of any new U.S. Revolving Lenders pursuant Goodmans LLP as counsel to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Canadian Administrative Agent).
Appears in 1 contract
Sources: Revolving Credit Agreement (Associated Materials, LLC)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when and only when the date Administrative Agent shall have received executed counterparts of this Amendment (or a consent to this Amendment) from the “First Amendment Effective Date”) on which all of Required Lenders and the following conditions precedent have been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) Borrower shall have completed the acquisition of certain Mineral Interests from Encore Operating, L.P. (“EOLP”), pursuant to that certain Purchase and Sale Agreement dated as of June 28, 2009, among EOLP, Parent and Borrower (the “June 2009 Acquisition Agreement”, and the transactions contemplated therein, the “June 2009 Acquisition Transaction”) in accordance in all material respects with the terms of the June 2009 Acquisition Agreement and applicable law.
(b) The Administrative Agent’s receipt of the following, each of which shall be originals or waived:telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Credit Party, each dated the Effective Date (or, in the case of certificates of governmental officials, a recent date before the Effective Date) and each in form and substance satisfactory to the Administrative Agent (unless otherwise specified):
(i) the General Administrative Agent shall have received a counterpart executed counterparts of this Amendment, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note (or replacement Note) executed by the Borrower in favor of each Lender requesting a Note to reflect such Lender’s Commitment after giving effect to this Amendment;
(iii) Mortgages or amendments to existing Mortgages covering Proved Mineral Interests that have a Recognized Value of not less than the 80% of the Recognized Value of all Proved Mineral Interests owned by the Credit Parties on the Effective Date (after giving effect to the June 2009 Acquisition Transaction) and included in the Borrowing Base in effect on the Effective Date, duly executed and delivered by a duly authorized officer of the U.S. Borrowerapplicable Credit Parties, together with such other assignments, conveyances, agreements and other writings as may be reasonably requested by the other BorrowersAdministrative Agent, the Majority Lenders including, without limitation, UCC financing statements and/or amendments to financing statements, in form and Extending Lenders substance reasonably satisfactory to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Credit Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Credit Party is a party or is to be a party;
(v) such documents and certifications as the General Administrative Agent may reasonably require to evidence that each Credit Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, as to certain corporate matters and as to the enforceability of the Mortgages and amendments to Mortgages, as applicable, in Texas and otherwise in form and substance satisfactory to the Administrative Agent;
(vii) a favorable opinion of Holme ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, special Montana and Wyoming counsel for the Administrative Agent, addressed to the Administrative Agent and each Lender, as to the enforceability of the Mortgages and amendments to Mortgages, as applicable, in Montana and Wyoming, respectively, and otherwise in form and substance satisfactory to the Administrative Agent;
(viii) a favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇▇ PC, special North Dakota counsel for the Administrative Agent, addressed to the Administrative Agent and each Lender, as to the enforceability of the Mortgages and amendments to Mortgages, as applicable, in North Dakota and otherwise in form and substance satisfactory to the Administrative Agent;
(ix) such lien search reports as the Administrative Agent shall have received evidence reasonably satisfactory require, conducted in such jurisdictions and reflecting such names as the Administrative Agent shall request;
(x) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and approvals (other than those related to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps ordinary conduct of its business) required in connection with the redemption execution, delivery and performance by each Credit Party and the validity against such Credit Party of the 2009 Notes as the General Administrative Agent may reasonably requireLoan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; and
(vixi) a certificate signed by a Responsible Officer of the General Administrative Agent shall have received evidence reasonably satisfactory to it Borrower certifying (A) that the aggregate principal amount conditions specified in Sections 4.02(a) and (b) of the Tranche A U.S. Revolving Credit Commitments on Agreement have been satisfied as of the First Amendment Effective Date Date, and (B) that there has not occurred a material adverse change (x) in the assets, properties, financial condition or business operations of Parent, the Borrower and its Subsidiaries (after giving effect to the minimum Revolving Credit Commitment Reduction June 2009 Acquisition Transaction), taken as a whole, since the date of 33.33% Parent’s most recent annual and any simultaneous addition quarterly consolidated balance sheet and consolidated statements of any new U.S. Revolving Lenders operations and cash flows delivered to the Administrative Agent pursuant to Section 2.6 6.01(a) or (b) of the Existing Credit Agreement, as applicable, or (y) will in the facts and information regarding such entities or the June 2009 Acquisition Transaction as represented to date.
(c) No litigation, arbitration or similar proceeding shall be not less than $700,000,000pending or threatened which calls into question the validity or enforceability of the June 2009 Acquisition Agreement, this Amendment, the other Loan Documents or the transactions contemplated hereby or thereby.
(d) Administrative Agent shall have received, for the account of each Lender who executes this Amendment on or before the Effective Date, an amendment fee equal to 0.10% of such Lender’s Applicable Percentage of the Borrowing Base in effect prior to giving effect to this Amendment and the increase in the Borrowing Base contemplated hereby.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution from each Existing Tranche B-1 Term Loan Lender with a Tranche B-2 Term Loan Commitment and from Additional Tranche B-2 Term Loan Lenders having Additional Tranche B-2 Term Loan Commitments equal in principal amount to the amount of Existing Tranche B-1 Term Loans held by Non-Consenting Existing Tranche B-1 Term Loan Lenders and Post-Closing Option Tranche B-2 Lenders, (ii) from the Administrative Agent, (iii) from the Required Lenders and (iv) from the Borrowers and each Term Lender which has delivered an executed Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrowers shall have paid to all Existing Tranche B-1 Term Loan Lenders on or prior to the First Amendment No. 3 Effective Date, simultaneously with the making of Tranche B-2 Term Loans under the Credit Agreement, all accrued and unpaid interest on the Existing Tranche B-1 Term Loans to, but not including, the Amendment No. 3 Effective Date;
(c) The Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Borrowers. The Borrowers, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinion;
(d) The Borrowers shall have paid (i) the Agents the fees in the amounts previously agreed in writing to be received on the Amendment No. 3 Effective Date, (ii) the Administrative Agent, for the account of each Tranche B-2 Term Loan Lender, a fee in an amendment fee amount equal to 1.000.125% of the outstanding principal amount of such Term Lender’s outstanding Tranche B-2 Term Loans Loan on the First Amendment No. 3 Effective Date and (it being agreed that iii) the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses (including including, without limitation the reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Agents) required of the Administrative Agent for which invoices have been presented prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe Amendment No. 3 Effective Date;
(ive) At the General time of and immediately after giving effect to the Amendment no Default or Event of Default shall have occurred and be continuing;
(f) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Properties (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrowers and the applicable Credit Party relating thereto) and, if any such certificates of resolutions Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act any successor agency) as a Responsible Officer in connection special flood hazard area with this Amendment and the other Loan Documents respect to which such Loan Party is a party or is flood insurance has been made available under the Flood Insurance Laws, evidence of flood insurance to be a partythe extent required pursuant to the Credit Agreement all by the Amendment No. 3 Effective Date;
(vg) the General The Administrative Agent shall have received evidence reasonably satisfactory the results of (i) searches of the Uniform Commercial Code filings (or equivalent filings) and (ii) bankruptcy, judgment, tax and intellectual property lien searches, made with respect to the Credit Parties in the states of formation of such Person, together with (in the case of clause (i)) copies of the financing statements (or similar documents) disclosed by such search;
(h) The Administrative Agent (or its counsel) shall have received (i) (A) a certificate of each of Holdings and the Borrowers, dated the Amendment No. 3 Effective Date, substantially in the form of Exhibit G to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer (or in the case of Holdings any Director or authorized agent of Holdings) and the Secretary or any Assistant Secretary of Holdings or the Borrowers (or in the case of Holdings any Director or authorized agent of Holdings), as applicable, and attaching the documents referred to in the following clause (B) and (B) (x) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrowers (or a duly authorized committee thereof) authorizing (I) the execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it that is a party and (II) in the U.S. Borrower has given an irrevocable call notice case of the Borrowers, the extensions of credit contemplated hereunder, (y) the Certificate of Incorporation and By-Laws, Certificate of Formation and Operating Agreement or other comparable organizational documents, as applicable, of Holdings and the Borrowers and (z) signature and incumbency certificates (or other comparable documents evidencing the same) of the Authorized Officers of Holdings and the Borrowers executing the Credit Documents to redeem all 2009 Notes outstanding which it is a party or (ii) a certificate of Holdings on behalf of each Borrower, dated the First Amendment No. 3 Effective Date and has taken such other steps in connection with executed by an Authorized Officer of Holdings, certifying that, except as otherwise indicated therein, there have been no amendments, supplements or modifications since the redemption Closing Date to the documents delivered on the Closing Date pursuant to Sections 6.3 and 6.4 of the 2009 Notes as the General Administrative Agent may reasonably requireCredit Agreement; and
(vii) Each Lender that so requests and the General Administrative Agent shall have received evidence (and shall be reasonably satisfactory satisfied with) (i) at least two (2) days prior to it that the aggregate principal amount of Amendment No. 3 Effective Date, such documentation and information as is reasonably requested in writing at least seven (7) Business Days prior to the Tranche A U.S. Revolving Credit Commitments on the First Amendment No. 3 Effective Date (after giving effect by the Administrative Agent about the Credit Parties to the minimum Revolving Credit Commitment Reduction of 33.33% extent the Administrative Agent and any simultaneous addition of any new U.S. Revolving Lenders pursuant Holdings in good faith mutually agree is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act and (ii) at least three (3) Business Days prior to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Amendment No.3 Effective Date, from each Borrower, if it qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
Appears in 1 contract
Sources: Credit Agreement (GoDaddy Inc.)
Conditions to Effectiveness of Amendment. This The effectiveness of the Amendment shall become effective on No. 3 Incremental Commitments and FILO Commitments and the date amendments set forth in Section 2 above are subject to satisfaction (or waiver by the “First Amendment Effective Date”No. 3 Lead Arrangers) on which all of the following conditions precedent (the date of such satisfaction being the “Amendment No. 3 Effective Date”):
(a) The Administrative Agent shall have received counterparts of this Agreement executed by a Responsible Officer of each Loan Party and a duly authorized officer of each Incremental Lender, the Revolving Lenders which constitute the Super Majority Lenders (immediately prior to giving effect to the FILO Commitments), the Assignor Lenders, each Issuing Bank and the Swing Line Lender.
(b) All fees and expenses required to be paid hereunder on the Amendment No. 3 Effective Date and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two Business Days before the Amendment No. 3 Effective Date (except as otherwise reasonably agreed to by the Borrower) shall have been satisfied paid in full, it being agreed that such fees and expenses may be paid with the proceeds of the funding of one or waived:more of the Facilities.
(ic) the General The Administrative Agent shall have received a counterpart certificate from a Responsible Officer of this Amendmenteach Loan Party dated the Amendment No. 3 Effective Date, executed and delivered by a duly authorized officer certifying as to the (A) Organization Documents of the U.S. Borrowereach Loan Party (which, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required filed with a Governmental Authority, shall be certified as of a recent date by clause such Governmental Authority), (viB) below; provided that any Lender may signify certificates of good standing, or its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendmentequivalent, from the secretary of state or other applicable office of the jurisdiction of organization or formation of each Loan Party signatory thereto;
if applicable in the relevant jurisdiction, (iiiC) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, applicable action of each Loan Party and (D) an incumbency certificates certificate and/or other certificates certificate of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require Party, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party it is a party or is to be a party;on the Amendment No. 3 Effective Date.
(vd) the General The Administrative Agent shall have received evidence reasonably satisfactory an opinion from the following special counsel to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption Loan Parties (or certain of the 2009 Notes as Loan Parties): (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, with respect to matters of New York and certain aspects of Delaware law and (B) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, with respect to matters of the General Administrative Agent may reasonably require; andprovinces of British Columbia, Québec and Ontario and the federal laws of Canada applicable therein.
(vie) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that a certificate from the aggregate principal amount chief financial officer or other officer with equivalent duties of the Tranche A U.S. Revolving Credit Commitments on Borrower as to the First Amendment Effective Date Solvency (after giving effect to the minimum Revolving Amendment No. 3 Transactions) of the Borrower.
(f) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements of the Amended Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Agreement with respect to the Borrowing on the Amendment No. 3 Effective Date.
(g) The Revolving Lenders pursuant shall have received at least three Business Days prior to Section 2.6 of the Existing Credit AgreementAmendment No. 3 Effective Date (i) will be not less than $700,000,000.all documentation and other information about the Loan Parties required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) to the extent the Borrower or Co-Borrower qualifies as a “legal entity customer” a Beneficial Ownership Certification, that in each case has been requested in writing at least ten Business Days prior to the Amendment No. 3
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have has been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment that, executed and delivered by a duly authorized officer when taken together, bear the signatures of the U.S. Borrower, Credit Parties and all the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment payment of any and Consent, all fees owing in the form set forth at the end of connection with this Amendment, from including a commitment increase fee payable to each Loan Party signatory thereto;Lender whose Commitment is being increased pursuant to this Amendment in the amount of 20 basis points (0.2%) on the amount of such increase.
(iiic) to the General Administrative extent invoiced, the Lenders, the Agent and the Book-Runner shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart payment or reimbursement of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable their out-of-pocket expenses (in connection with this Amendment and any other out-of-pocket expenses of the Lenders, the Agent or the Book-Runner required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentcounsel for the Agent;
(ivd) the General Administrative Agent Borrowers shall have received delivered to the Agent such certificates of resolutions or other actionauthorized officers of the Borrowers and the Guarantors, incumbency certificates and/or other certificates of Responsible Officers Governmental Authorities, certified copies of each Loan Party the certificates of incorporation, formation, bylaws and operating agreements, as applicable, of the Borrowers and the Guarantors (or certified confirmation that no amendments, modifications or revisions have been to those previously certifies and delivered to the Agent, as applicable), certified copies of resolutions of the directors, managers or members, as applicable of the Borrowers and the Guarantors and such other documents, instruments and agreements as the General Administrative Agent may reasonably shall require evidencing to evidence the identityvalid corporate existence and authority to conduct business of the Borrowers and the Guarantors and the due authorization, authority execution and capacity delivery of each Responsible Officer thereof authorized this Amendment any other documents related to act as a Responsible Officer in connection with this Amendment and any other legal matters relating to the Borrowers, the Guarantors, any Subsidiary or the other Loan Documents by the Borrowers and/or the Guarantors, all in a form and substance reasonable satisfactory to which such Loan Party is a party or is to be a partythe Agent and its counsel;
(ve) the General Administrative Agent Borrowers shall have received evidence reasonably satisfactory delivered to it that the U.S. Borrower has given an irrevocable call notice Agent a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel to redeem all 2009 Notes outstanding on the First Amendment Borrowers and the Guarantors dated as of the Effective Date Date, addressed to the Agent and has taken the Lenders and covering such other steps matters in connection with the redemption of the 2009 Notes foregoing as the General Administrative Agent or the Lenders may reasonably requirerequest, in a form and substance reasonably satisfactory to the Agent and its counsel; and
(vif) the General Administrative Agent Borrowers shall have received evidence reasonably satisfactory delivered to it that the aggregate principal amount of the Tranche A U.S. Agent new duly completed and executed Revolving Credit Commitments on Notes dated as the First Amendment Effective Date (after giving effect for each Lender who has increased its Commitment pursuant to this Amendment, and in each case payable to the minimum Revolving Credit Commitment Reduction order of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000such Lender.
Appears in 1 contract
Sources: Credit Agreement (Neenah Paper Inc)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective and the obligations of each Tranche C Term Lender to make a Tranche C Term Loan hereunder on the date (the “First Incremental Facility Amendment Effective Date”) Date are subject to the satisfaction or waiver on which all or prior to the Incremental Facility Amendment Effective Date of each of the following conditions precedent have been satisfied or waivedconditions:
(ia) the General The Administrative Agent shall have received (i) a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. BorrowerBorrower and the Tranche C Term Lenders, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment Acknowledgement and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
and (iii) for the General account of each Tranche C Term Lender that has requested Notes pursuant to the Existing Credit Agreement, Notes with respect to the Tranche C Term Loans conforming to the requirements hereof and executed by a duly Authorized Officer of the Borrower.
(b) The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment opinions, addressed to the General Administrative Agent on or prior to and each of the First Lenders and dated the Incremental Facility Amendment Effective Date, an amendment fee equal from (i) K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, special New York counsel to 1.00% the Borrower and (ii) B▇▇▇▇▇ R. ▇▇▇▇▇▇, which opinion shall cover the matters covered in Exhibit E-2 to the Existing Credit Agreement, after giving affect to this Amendment.
(c) The Administrative Agent shall have received from the Borrower, a certificate, dated the Incremental Facility Amendment Effective Date, signed by the Chief Executive Officer, President or any Vice-President and the Secretary of the Borrower in the form of Exhibit C to the Existing Credit Agreement with appropriate insertions and deletions, together with (x) copies of the resolutions, or such Term Lender’s outstanding other administrative approval, of the Borrower approving the Tranche C Term Loans on to be reasonably satisfactory to the First Amendment Effective Date Administrative Agent and (it being agreed y) a statement that all of the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart applicable conditions set forth in Sections 3(f) and 3(g) of this Amendment have been satisfied as of such date.
(d) The Administrative Agent shall have received from the President, Chief Financial Officer or another senior financial or accounting officer of the Borrower a reasonably satisfactory solvency certificate that shall document the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the General transactions contemplated hereby.
(e) The Tranche C Term Lenders, the Administrative Agent on or prior and each Lead Arranger shall have received all fees required to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersbe paid, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior expenses required to the First Amendment Effective Date be paid for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed on or paid by any Loan Party hereunder or under any other Loan Document;before the Incremental Facility Amendment Effective Date.
(ivf) All representations and warranties contained in the General Administrative Agent shall have received such certificates of resolutions Existing Credit Agreement (as amended by this Amendment) or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding in effect on the First Incremental Facility Amendment Effective Date both before and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Tranche C Term Loans shall be true and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Existing Credit AgreementIncremental Facility Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier date and except to the extent already qualified by materiality, in which case such representations and warranties shall be true and correct in all respects.
(g) will After giving effect to this Amendment, no Default or Event of Default shall have occurred and be not less than $700,000,000continuing.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:waived (the “Third Amendment Effective Date”):
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of (A) MWVC, (B) the U.S. Borrower, (C) Lenders constituting the other Borrowers, the Majority Required Lenders and Extending Lenders (D) the Administrative Agent.
(b) After giving effect to this Amendment, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (and in all respects if qualified by materiality) on and as of the Third Amendment Effective Date as if made on and as of the Third Amendment Effective Date (or to the extent required by clause such representations and warranties expressly relate to an earlier date, as of such earlier date).
(vic) below; provided that No Default or Event of Default shall have occurred and be continuing on the Third Amendment Effective Date or after giving effect to the amendments contemplated herein and any Lender may signify its consent extensions of credit requested to this be made on the Third Amendment by instead executing a “lender addendum” Effective Date.
(d) All governmental and third party approvals necessary in a form as provided connection with the transactions contemplated hereby and by the Administrative Agent;Credit Agreement shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or, to the Borrower’s knowledge, threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.
(iie) The Lenders and the General Administrative Agent shall have received an executed Acknowledgment all fees required to be paid, and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date expenses for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required presented to be reimbursed the Borrower on or paid by any Loan Party hereunder or under any other Loan Document;before the Third Amendment Effective Date.
(ivf) the General The Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent Lenders shall have received evidence reasonably satisfactory received, at least 5 days prior to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Third Amendment Effective Date Date, all documentation and has taken such other steps in connection with information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the redemption Patriot Act, previously requested of the 2009 Notes as Borrower by the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Agent.
Appears in 1 contract
Sources: Credit Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Conditions to Effectiveness of Amendment. This 2.1 The effectiveness of the amendments and waivers set forth in this Amendment shall become effective on No. 4 is subject to the date (the “First Amendment Effective Date”) on which all prior or simultaneous fulfillment of the following conditions precedent have been satisfied or waivedconditions:
(ia) the General Administrative The Agent shall have received a counterpart of this Amendment, Amendment No. 4 executed and delivered by (i) a duly authorized officer or officers of the U.S. BorrowerCompany and (ii) the Required Lenders;
(b) The Agent shall have received such other documents as it shall have reasonably requested consistent with the terms hereof;
(c) The representations and warranties set forth in Section 3 hereof shall be true and correct on and as of the Amendment No. 4 Effective Date;
(d) Holders of Indebtedness under each Covenant Credit Facility shall have executed, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent each such Covenant Credit Facility, waivers or amendments to such credit facilities satisfactory to the Agent and the Required Lenders containing amendments to the covenants and related definitions in such credit facilities identical to those set forth in Section 1 of this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentNo. 4;
(iie) The Agent shall have received payment of all of its out-of-pocket expenses, including the General Administrative reasonable fees and expenses of its counsel ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP incurred in connection with this Amendment No. 4;
(f) The Agent shall have received an amendment to the ▇▇▇▇▇▇ Facility Agreement in form and substance satisfactory to the Agent executed Acknowledgment and Consent, by the parties to the ▇▇▇▇▇▇ Facility Agreement extending the maturity date of the Tranche B Loan (as defined in the form set forth at the end of this Amendment▇▇▇▇▇▇ Facility Agreement) to July 31, from each Loan Party signatory thereto2000;
(iiig) the General Administrative The Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart the Efficacy Certificate and $6,000,000 of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices ▇▇▇▇▇ Efficacy Payment shall have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;deposited in the Reserve Account; and
(ivh) the General Administrative The Agent shall have received such certificates confirmation that each of resolutions or other actionO'Melveny & ▇▇▇▇▇ LLP, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as counsel to the General Administrative Agent may reasonably require evidencing Steering Committee, and Ernst & Young Restructuring LLC, financial advisor to the identitySteering Committee, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that payment of their respective reasonable fees and expenses incurred through June 30, 2000.
2.2 The date on which the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on conditions set forth in Section 2.1 are satisfied is the First "Amendment No. 4 Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Date".
Appears in 1 contract
Sources: Credit Agreement (Ogden Corp)
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent (such date, the “Fifth Amendment Effective Date”):
a. the Borrower Representative, each other Loan Party (other than Loan Parties incorporated in Korea) and the New Term Lenders shall have been satisfied executed and delivered counterparts (or, as applicable, a Lender Consent or waived:a Joinder) to this Amendment to the Administrative Agent;
b. each of the representations and warranties contained in Section 9 of this Amendment shall be true and correct in all material respects (iand in all respects if any such representation or warranty is already qualified by materiality) on and as of the General Fifth Amendment Effective Date;
c. at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Fifth Amendment Effective Date, no Default or Event of Default exists;
d. the Administrative Agent shall have received a counterpart of this Amendment, executed certificate dated the Fifth Amendment Effective Date and delivered signed by a duly authorized officer Responsible Officer of the U.S. BorrowerBorrower Representative, confirming compliance with the other Borrowers, the Majority Lenders conditions set forth in Sections 7(b) and Extending Lenders to the extent required by clause (vi6(c) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenthereof;
(ii) e. the General Administrative Agent shall have received an executed Acknowledgment and Consent, a solvency certificate dated as of the Fifth Amendment Effective Date in substantially the form of Exhibit H of the Amended Credit Agreement from a Financial Officer of the Parent certifying as to the matters set forth at therein;
f. the end Administrative Agent shall have received, on behalf of itself and the Lenders on the Fifth Amendment Effective Date, a customary written opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Parent, the Borrowers and each other Loan Party (A) dated the Fifth Amendment Effective Date, (B) addressed to the Administrative Agent, the Amendment Arrangers and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and the Amendment Arrangers covering such matters relating to this Amendment, from each Loan Party signatory thereto;
(iii) g. the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this ▇▇▇▇▇▇▇ Sachs Bank USA, in its capacity as Amendment Arranger, all fees and expenses agreed to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts Borrowers or the Borrower Representative that are due and payable on or prior to before the First Fifth Amendment Effective Date for which invoices have been presented, (including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges expenses and disbursements of legal counsel) required in each case to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe extent notified to the Borrower Representative at least three (3) Business Days prior to the Fifth Amendment Effective Date;
(iv) h. the General Administrative Agent shall have received such certificates of resolutions for distribution to each New Term Lender that shall have delivered (by facsimile or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized otherwise) an executed signature page to act as a Responsible Officer in connection with this Amendment and (or, as applicable, a Lender Consent or a Joinder) prior to the other Loan Documents Consent Deadline (as defined below), a non-refundable special participation fee in an amount equal to which 0.125% multiplied by the unpaid principal balance of the Refinancing Term Loans denominated in Euro held by such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding Existing Term Lender on the First Fifth Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% this Amendment and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.transactions contemplated hereby. For purposes hereof, “Consent Deadline” shall mean 5:00 p.m. London time on October 26, 2017; and
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 2 Effective Date”) on which all when, and only when, each of the following conditions precedent have been satisfied (or waived:waived by the Administrative Agent, each Lender (after giving effect to the Incremental Revolving Commitments established hereby) and the Issuing Bank):
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of from (i) the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders (determined after giving effect to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
Incremental Revolving Commitments established hereby), (ii) the General Administrative Agent shall have received an executed Acknowledgment and ConsentIssuing Bank, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) Holdings and (iv) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an Borrower a duly executed counterpart of this Amendment signed on behalf of such party (which may include facsimile or other electronic transmission of a signed signature page of this Amendment).
(b) The representations and warranties of each Loan Party set forth in Section 3 shall be true and correct in all material respects (or in all respects to the General Administrative Agent extent already qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification) on or prior to and as of the First Amendment No. 2 Effective Date, an amendment fee equal to 1.00% with the same effect as though made on and as of such Term Lender’s outstanding Term Loans on date; provided that to the First Amendment Effective Date extent such representations and warranties expressly relate to an earlier date, such representations and warranties shall be true and correct in all material respects (it being agreed that or in all respects to the amendment fee is payable extent already qualified by or subject to a Term Lender only if “material adverse effect,” “material adverse change” or similar term or qualification) as of such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;earlier date.
(ivc) the General The Administrative Agent shall have received such certificates received, on behalf of resolutions or other actionitself and the Lenders and each Issuing Bank, incumbency certificates and/or other certificates of Responsible Officers a favorable written opinion of each of (1) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Party as Parties and (2) ▇▇▇▇▇▇ & Whitney LLP, Minnesota counsel for the General Loan Parties, in each case (A) dated the Amendment No. 2 Effective Date, (B) addressed to each Issuing Bank, the Administrative Agent may and the Lenders as of the Amendment No. 2 Effective Date and (C) in form and substance reasonably require evidencing satisfactory to the identityAdministrative Agent, authority and capacity of each Responsible Officer thereof authorized covering such matters relating to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;as the Administrative Agent shall reasonably request.
(vd) the General The Administrative Agent shall have received evidence a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party, in form and substance reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice Administrative Agent and in any event substantially similar in form and substance to redeem all 2009 Notes outstanding the corresponding certificates delivered on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andClosing Date.
(vii) the General The Administrative Agent shall have received a Borrowing Base Certificate as of the Amendment No. 2 Effective Date from the Borrower, which Borrowing Base Certificate shall include, for the avoidance of doubt, any Spare Engines that the Borrower proposes to include in Eligible Equipment as of the Amendment No. 2 Effective Date, with such customary supporting information as the Administrative Agent shall have reasonably requested and (ii) substantially concurrently with the effectiveness of this Amendment, the Borrower shall have caused FAA Mortgages to be filed with the FAA in respect of the Spare Engines included in the Borrowing Base Certificate delivered pursuant to the foregoing clause (i).
(f) The Administrative Agent shall have received the results of a search of the Uniform Commercial Code (or equivalent), tax and judgment filings made with respect to the Loan Parties and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to it the Administrative Agent that the aggregate principal amount Liens indicated by such financing statements (or similar documents) are Permitted Liens.
(g) The Borrower shall have paid (i) all fees payable to any Lender, the Administrative Agent or any of their respective affiliates as agreed between such Lender or the Tranche A U.S. Revolving Credit Commitments on Administrative Agent and the First Amendment Effective Date Borrower and (after ii) all reasonable fees, expenses and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel for the Administrative Agent, incurred in connection with the preparation, negotiation and execution of this Amendment, in the case of clause (ii), to the extent invoiced at least three (3) Business Days prior to the date hereof.
(h) After giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Amendment, the Collateral and any simultaneous addition of any new U.S. Revolving Lenders pursuant Guarantee Requirement shall be satisfied.
(i) The Administrative Agent and each applicable Lender shall have received, at least three Business Days prior to Section 2.6 the Amendment No. 2 Effective Date, all documentation and other information regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to the extent requested in writing of the Existing Credit AgreementBorrower at least 10 days prior to the Amendment No. 2 Effective Date and (ii) will be not less than $700,000,000to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three Business Days prior to the Amendment No. 2 Effective Date, any Lender that has requested, in a written notice to the Borrower at least 10 days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the upon that date (the “First Amendment Effective Date”) on which all when each of the following conditions precedent have has been satisfied or waivedmet:
(ia) The Senior Secured Five Year Notes and related documents shall provide for the General Administrative Agent shall have received payment of a counterpart of this Amendment, executed and delivered by a duly authorized officer portion of the U.S. Borrower, proceeds of the other Borrowers, issuance of the Majority Lenders and Extending Lenders Senior Secured Five Year Notes directly by the trustee for the noteholders thereof to the extent required by clause (vi) belowAgent as a prepayment in such amount of the Revolving Credit Loans and Swing Loans, if any, outstanding, and the Senior Secured Five Year Notes and related documents shall substantially conform to the Summary of Terms accompanying this Amendment as Exhibit A and the Description of Notes in the preliminary offering memorandum for the Senior Secured Five Year Notes; provided that any Lender may signify its consent changes or additions to this Amendment by instead executing a “lender addendum” in a form as provided by covenants, terms or conditions of the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form Senior Secured Five Year Notes from those set forth at in such Exhibit or preliminary Description of Notes shall not be materially more restrictive to any of the end Loan Parties than those of this Amendment, from each Loan Party signatory thereto;
the Credit Agreement as amended hereby (iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole reasonable discretion) and );
(b) all other fees The Senior Secured Five Year Notes shall have been issued in a principal amount not less than $600,000,000 and amounts due and payable on or prior a portion of the proceeds of the Senior Secured Five Year Notes shall be paid directly by the issuer thereof to the First Amendment Effective Date for which invoices Agent as a prepayment in such amount of the Revolving Credit Loans and Swing Loans, if any, outstanding.
(c) The Loan Parties, Agent and Lenders, as appropriate shall have executed and delivered replacement promissory notes substantially in the form of Exhibits 1.1(R) and 1.1(S)(2) (reflecting the revised Commitments), and an amended and restated Security Agreement in substantially the form attached hereto as Exhibit 1.1(S)(1).
(d) There shall have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required delivered to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers for the benefit of each Lender written opinions of (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire, in house counsel to the Loans Parties and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Party Parties, in each case dated as of the General Administrative Agent may reasonably require evidencing date of issuance of the identity, authority and capacity of each Responsible Officer thereof authorized Senior Secured Five Year Notes substantially similar in scope to act as a Responsible Officer the opinion letter received in connection with the Credit Agreement, including no conflict of this Amendment with the terms of existing or new indebtedness of the Loan Parties and no conflict between the terms of the Senior Secured Five-Year Notes and existing indebtedness of the Loan Parties, and otherwise in form and substance reasonably satisfactory to the Agent and its counsel and covering such matters relating to the Loan Parties and the Loan Documents, including this Amendment, as the Agent shall reasonably request.
(e) The representations and warranties of the Loan Parties contained in Section 5 [Representations and Warranties] of the Credit Agreement as amended hereby and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Effective Senior Secured Five Year Notes Date (such term being used in this Clause (e) as defined at Section 1(e) hereof) (except representations and warranties which expressly relate solely to an earlier date or time, which such Loan Party is a party representations and warranties shall be true and correct in all material respects on and as of the specific dates or is times referred to be a party;
(v) the General Administrative Agent therein); no Event of Default or Potential Default shall have received evidence reasonably satisfactory to it that occurred and be continuing or shall exist; and, Borrower and Hovnanian make the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date following additional representations and has taken such other steps in connection with the redemption warranties each of which shall be true and correct as of the 2009 Effective Senior Secured Five Year Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.Date:
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject solely to the date (the “First Amendment Effective Date”) on which all satisfaction or waiver of each of the following conditions precedent have been (the “Amendment No. 12 Effective Date Conditions”; and the date on which such conditions are satisfied or waived:, the “Amendment No. 12 Effective Date”):
(a) The Administrative Agent shall have received (i) from each Existing Tranche B-6 Term Loan Lender with a Tranche B-8 Term Loan Commitment and from the Additional Tranche B-8 Term Loan Lenders having Additional Tranche B-8 Term Loan Commitments equal in principal amount to the amount of Existing Tranche B-6 Term Loans held by Non-Consenting Existing Tranche B-6 Term Loan Lenders and Post-Closing Option Tranche B-8 Lenders, (ii) from the Administrative Agent, and (iii) from the Borrowers and each Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (including, for the avoidance of doubt, in each case of a Cashless Option Tranche B-8 Lender or Post-Closing Option Tranche B-8 Lender, an executed counterpart substantially in the form of Exhibit A hereto) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrowers shall have paid to all Existing Tranche B-6 Term Loan Lenders on the Amendment No. 12 Effective Date, substantially concurrently with the making of Tranche B-8 Term Loans under the Amended Credit Agreement, all accrued and unpaid interest on the Existing Tranche B-6 Term Loans to, but not including, the Amendment No. 12 Effective Date;
(c) The Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrowers and Morris, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇ LLP, as special Delaware counsel for the Borrowers. The Borrowers, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions;
(d) The Borrowers shall have paid (i) the General Agents the fees in the amounts previously agreed in writing to be received on the Amendment No. 12 Effective Date, and (ii) the Administrative Agent and the Amendment No. 12 Arrangers, as applicable, all reasonable costs and expenses of the Administrative Agent and the Amendment No. 12 Arrangers, as applicable, for which invoices have been presented prior to the Amendment No. 12 Effective Date (including, without limitation, the reasonable and documented fees and out-of-pocket expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel for the Amendment No. 12 Arrangers and the Administrative Agent with respect thereto);
(e) The Administrative Agent (or its counsel) shall have received (i) (A) a certificate of each of Holdings and the Borrowers, dated the Amendment No. 12 Effective Date, substantially in the form of Exhibit G to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer (or in the case of Holdings any Director or authorized agent of Holdings) and the Secretary or any Assistant Secretary of Holdings or the Borrowers (or in the case of Holdings any Director or authorized agent of Holdings), as applicable, and attaching the documents referred to in the following clause (B), and (B) (x) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrowers (or a duly authorized committee thereof) authorizing (I) the execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it is a party and (II) in the case of the Borrowers, the extensions of credit contemplated hereunder, (y) the Certificate of Incorporation and By-Laws, Certificate of Formation and Operating Agreement or other comparable organizational documents, as applicable, of Holdings and the Borrowers and (z) signature and incumbency certificates (or other comparable documents evidencing the same) of the Authorized Officers of Holdings and the Borrowers executing the Credit Documents to which it is a party or (ii) a certificate of Holdings on behalf of each Borrower, dated the Amendment No. 12 Effective Date and executed by an Authorized Officer of Holdings, certifying that, except as otherwise indicated therein, there have been no amendments, supplements or modifications since the Closing Date to the documents delivered on the Closing Date pursuant to Sections 6.3 and 6.4 of the Credit Agreement;
(f) The Administrative Agent shall have received a counterpart Notice of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders Borrowing with respect to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentTranche B-8 Term Loans;
(iig) At the General time of and immediately after giving effect to the Amendment, no Event of Default under Section 11.1 or Section 11.5 of the Credit Agreement shall have occurred and be continuing; and
(h) The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the Mortgaged Property and, if the Mortgaged Property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the Flood Insurance Laws, (i) a notice about special flood hazard area status and flood disaster assistance duly executed Acknowledgment by the Borrowers and Consentthe applicable Credit Party relating thereto and (ii) evidence of flood insurance to the extent required pursuant to the Credit Agreement all by the Amendment No. 12 Effective Date. Each Additional Tranche B-8 Term Loan Lender party hereto and each Cashless Option Tranche B-8 Lender and Post-Closing Option Tranche B-8 Lender by delivering its signature page to this Amendment or a Consent to Twelfth Amendment Agreement, in as applicable, and providing its applicable Commitment on the form Amendment No. 12 Effective Date (as applicable), shall be deemed to have accepted or been satisfied with (or waived) each condition set forth at the end of in this Amendment, from each Loan Party signatory thereto;
(iii) the General Section 3. The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart notify the Lenders of this the Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment No. 12 Effective Date (it being agreed that upon the amendment fee is payable to a Term Lender only if occurrence thereof, and such Term Lender has delivered an executed counterpart notice and the effectiveness of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Amended Credit Agreement shall be conclusive and binding upon all of the Lenders and all of the other Loan parties to the Credit Documents and each of their successors and assigns; provided that, failure to which give any such Loan Party is a party notice shall not affect the effectiveness, validity or is to be a party;
(v) enforceability of this Amendment or the General Administrative Agent shall have received evidence reasonably satisfactory to it Amended Credit Agreement. The parties hereto, and each Cashless Option Tranche B-8 Lender and Post-Closing Option Tranche B-8 Lender, hereby agree that notwithstanding any other provision hereof, the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment No. 12 Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000is December 16, 2024.
Appears in 1 contract
Sources: Credit Agreement (GoDaddy Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 8 Effective Date”) on which all of that the following conditions precedent have been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each Loan Party (as defined in the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentExisting Term Loan Agreement);
(iib) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (ai) for distribution Consents from Lenders constituting Replacement 2019-1 Term B-7 Lenders and/or Replacement 2019 Term B-8 Lenders and/or (ii) executed Joinders, each entered into by an Additional 2019-1 Term B-7 Lender and/or Additional 2019 Term B-8 Lender, Holdings and the Borrowers, and acknowledged by the Agent;
(c) the Agent shall have received a customary legal opinion (including no conflicts with all indentures and other material debt documents of the Parent Borrower and its subsidiaries) (i) from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (ii) from ▇▇▇▇▇▇▇▇▇ Traurig LLP, California, Illinois, Massachusetts, and Texas counsel to the Loan Parties, in each case addressed to the Agent and the Lenders;
(d) the Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority (as defined in the Existing Term Lender which has delivered an executed counterpart Loan Agreement) and (ii) a certificate of a duly authorized officer of each Loan Party dated the Amendment No. 8 Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Amendment No. 8 Effective Date or, if applicable, that no modifications have been made to such documents since November 16, 2018, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the General Administrative Agent incumbency and specimen signature of each officer executing this Amendment on or prior behalf of such Loan Party and countersigned by another officer as to the First incumbency and specimen signature of a duly authorized officer executing the certificate pursuant to clause (ii) above;
(e) the Agent shall have received a certificate of an authorized officer of the Parent Borrower dated the Amendment No. 8 Effective Date certifying that (i) each of the representations and warranties made by any Loan Party in or pursuant to the Financing Agreements shall be, after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Amendment No. 8 Effective Date, except to the extent such representations and warranties expressly relate to an amendment fee equal to 1.00% earlier time, in which case such representations and warranties were true and correct in all material respects as of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed earlier time; provided that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on extent any such representation or prior warranty is already qualified by materiality or material adverse effect, such representation or warranty is true and correct in all respects; provided, further, that each reference to the time that Existing Term Loan Agreement therein shall be deemed to be a reference to the General Administrative Agent has received executed counterparts Existing Term Loan Agreement after giving effect to this Amendment; (ii) after giving effect to this Amendment, no Default or Event of this Amendment from Default (each as defined in the Majority Lenders, as determined by the General Administrative Agent in its sole discretionExisting Term Loan Agreement) shall have occurred and be continuing and (biii) all other fees no event shall have occurred and amounts due and payable on no condition shall exist that has or prior may be reasonably to be likely to have a Material Adverse Effect (as defined in the Existing Term Loan Agreement);
(f) the Parent Borrower shall have paid (or have caused to be paid), (i) to the First Amendment Effective Date for which invoices have been presentedNo. 8 Arrangers (as defined below) in immediately available funds, including all fees owing to the Amendment No. 8 Arrangers in connection with arranging the 2019-1 Term B-7 Loans and the 2019 Term B-8 Loans (each as defined in the Amended Term Loan Agreement) as separately agreed to in writing by Holdings and the Amendment No. 8 Arrangers and (ii) to the extent invoiced, all reasonable and documented out-of-pocket expenses (including reasonable fees, charges of the Amendment No. 8 Arrangers and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby (but limited, in the case of legal fees and expenses, to which such Loan Party is a party or is to be a partythe reasonable and documented fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP);
(vg) subject to subsection (e) above, the General Administrative Agent conditions precedent set forth in Section 4.2 of the Existing Term Loan Agreement shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date been satisfied both before and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction borrowing of 33.33% Replacement 2019-1 Term B-7 Loans and Replacement 2019 Term B-8 Loans;
(h) the Agent shall have received a solvency certificate signed by the Chief Financial Officer of Holdings substantially in the form attached as Exhibit O to the Existing Term Loan Agreement;
(i) if requested by the Agent, the Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens (as defined in the Existing Term Loan Agreement) on the assets of the Loan Parties, except for Permitted Liens (as defined in the Existing Term Loan Agreement) and Liens for which termination statements and releases, satisfactions and releases or subordination agreements satisfactory to the Agent are being tendered concurrently with the Amendment No. 8 Effective Date or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(j) the Agent shall have received a Committed Loan Notice (as defined in the Existing Term Loan Agreement) for the Replacement 2019-1 Term B-7 Loans and the Replacement 2019 Term B-8 Loans;
(k) the Agent shall have received, at least five (5) Business Days (as defined in the Existing Term Loan Agreement) prior to the Amendment No. 8 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the PATRIOT Act, that has been reasonably requested by the Lenders at least ten (10) Business Days prior to the Amendment No. 8 Effective Date;
(l) to the extent any simultaneous addition Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”) and at least five (5) Business Days prior to the Amendment No. 8 Effective Date, such Borrower shall deliver to each Lender that so requests (which request is made through the Agent), a certification regarding beneficial ownership required by the Beneficial Ownership Regulation (the “Beneficial Ownership Certification”) in relation to such Borrower; provided that the Agent has provided such Borrower a list of each such Lender and its electronic delivery requirements at least ten (10) Business Days prior to the Amendment No. 8 Effective Date;
(m) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (as defined in the Existing Term Loan Agreement), and to the extent any new U.S. Revolving Lenders pursuant to Mortgaged Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto, and (ii) evidence of flood insurance as required by Section 2.6 9.4 of the Existing Credit Term Loan Agreement and the applicable provisions of the Collateral Documents (as defined in the Existing Term Loan Agreement); and
(n) will be not less than $700,000,000the Repayment shall have been consummated prior to or substantially concurrently with the effectiveness of this Amendment.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have has been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment that, executed and delivered by a duly authorized officer when taken together, bear the signatures of the U.S. Borrower, Credit Parties and all the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment payment for any and Consent, all fees owing in the form set forth at the end of connection with this Amendment, from including the amendment fee in the aggregate amount of $165,000 for all such Lenders, which amendment fee shall be divided on a pro rata basis among such Lenders by Agent based on each Loan Party signatory thereto;Lender’s Commitment Percentage (after giving effect to the amendments set forth in this Amendment, including the increase of the Total Commitment).
(iiic) to the General Administrative extent invoiced, the Lenders, the Agent and the Book-Runner shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart payment or reimbursement of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable their out-of-pocket expenses (in connection with this Amendment and any other out-of-pocket expenses of the Lenders, the Agent or the Book-Runner required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentcounsel for the Agent;
(ivd) the General Administrative Borrowers shall have delivered to the Agent such certificates of authorized officers of the Borrowers and the Guarantors, certificates of Governmental Authorities, certified copies of the certificates of incorporation, formation, bylaws and operating agreements, as applicable, of the Borrowers and the Guarantors (or certified confirmation that no amendments, modifications or revisions have been to those previously certifies and delivered to the Agent, as applicable), certified copies of resolutions of the directors, managers or members, as applicable of the Borrowers and the Guarantors and such other documents, instruments and agreements as the Agent shall require to evidence the valid corporate existence and authority to conduct business of the Borrowers and the Guarantors and the due authorization, execution and delivery of this Amendment any other documents related to this Amendment and any other legal maters relating to the Borrowers, the Guarantors, any Subsidiary or the other Loan Documents by the Borrowers and/or the Guarantors, all in a form and substance reasonable satisfactory to the Agent and its counsel;
(e) the Borrowers shall have delivered to the Agent a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Borrowers and the Guarantors dated as of the Effective Date, addressed to the Agent and the Lenders and covering such matters in connection with the foregoing as the Agent or the Lenders may reasonably request, in a form and substance reasonable satisfactory to the Agent and its counsel;
(f) the Borrowers shall have delivered to the Agent new duly completed and executed Revolving Credit Notes dated as the Effective Date for each Lender who has increased its Commitment pursuant to this Amendment, and in each case payable to the order of such Lender;
(g) the Borrowers shall have delivered to the Agent security documents and other legal documentation related to the pledge of 65% of the issued and outstanding equity interests of ▇▇▇▇▇ and the Pledged Inter-Company Loans and each Pledged Inter-Company Note, each of which shall be in form and substance satisfactory to the Agent and its counsel;
(h) the Agent shall have received and be satisfied with asset appraisals (inventory, equipment and the Timberland Properties) of certain assets to be specified by the Agent from appraisers satisfactory to the Agent; provided, that, such certificates of resolutions appraisers shall be engaged directly by the Agent and shall have no direct or indirect interest, financial or otherwise, in the Property or the transaction; and
(i) the Borrowers shall have delivered to the Agent such other actiondocuments, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party instruments and agreements as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps request in connection with the redemption purposes of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence this Amendment, all in form and substance reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Agent and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000its counsel.
Appears in 1 contract
Sources: Credit Agreement (Neenah Paper Inc)
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waived:(such date, the “Eighth Amendment Effective Date”):
(i) the General Borrowers, each other Loan Party and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) each Exchanging Revolving Lender shall have executed and delivered to the Administrative Agent a Revolving Lender Consent, and (iii) each Additional Revolving Lender, the Borrower Representative and the Administrative Agent shall have executed and delivered to the Administrative Agent a Revolving Credit Facility Joinder;
b. the Administrative Agent shall have received the Collateral Documents and other documentation identified on Schedule A-1 hereto, in each case in form and substance reasonably acceptable to the Administrative Agent;
c. each of the representations and warranties contained in Section 6 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Eighth Amendment Effective Date;
d. at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Eighth Amendment Effective Date (including the incurrence of the Incremental Revolving Facility), no Default or Event of Default exists;
e. the Administrative Agent shall have received a counterpart of this Amendmentcertificate, executed in form and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders substance reasonably acceptable to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
, dated the Eighth Amendment Effective Date and signed by a Responsible Officer of the Borrower Representative (i) confirming compliance with the conditions set forth in Sections 5(c) and 5(d) hereof, and (ii) certifying that the General Incremental Revolving Commitments incurred hereunder are permitted to be incurred pursuant to clause (z) of Section 2.14(a) of the Existing Credit Agreement and setting forth the information and computations (in sufficient detail) required in order to establish pro forma compliance with the requirements of such clause ;
f. the Administrative Agent shall have received an executed Acknowledgment a solvency certificate dated as of the Eighth Amendment Effective Date in substantially the form of Exhibit H of the Amended Credit Agreement from a Financial Officer of the Parent certifying as to the matters set forth therein;
g. the Administrative Agent shall have received each Revolving Credit Note (to the extent requested at least three Business Days prior to the Eighth Amendment Effective Date);
a. no later than three days in advance of the Eighth Amendment Effective Date, the Administrative Agent shall have received all documentation and Consentother information reasonably requested by it in writing at least 10 days in advance of the Eighth Amendment Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
b. the Administrative Agent shall have received a certificate dated as of the Eighth Amendment Effective Date from a Responsible Officer of the Borrower Representative, certifying compliance with Section 6.13 of the Existing Credit Agreement;
c. the Administrative Agent shall have received, on behalf of itself and the Lenders on the Eighth Amendment Effective Date, a customary written opinion of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for Parent, the Borrowers and each other Loan Party and (ii) local counsel as specified in Schedule A-2 hereto, in each case (A) dated the Eighth Amendment Effective Date, (B) addressed to the Administrative Agent, the Amendment Arranger and the Lenders and (C) in form set forth at and substance reasonably satisfactory to the end of Administrative Agent and the Amendment Arranger covering such matters relating to this Amendment, from each Amendment and the other Loan Party signatory theretoDocuments as the Administrative Agent or the Amendment Arranger shall reasonably request; provided that counsel to the Administrative Agent shall provide such opinions to the extent customary in any applicable jurisdiction to be mutually agreed;
(iii) d. the General Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers certificate of each Loan Party as a party to this Amendment, dated the General Administrative Agent may reasonably require evidencing the identity, authority Eighth Amendment Effective Date and capacity of each Responsible Officer thereof authorized to act as executed by a Responsible Officer in connection with of such Loan Party, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its board of directors, members or other governing body (to the extent applicable) authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party and, in the case of each Borrower, the Borrowings contemplated hereby, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the Responsible Officer or authorized signatory of such Loan Party authorized to sign this Amendment and the other Loan Documents to which it is a party and (C) certify that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement (to the extent applicable) and that such documents or agreements have not been amended since the date of the last amendment thereto shown on the certificate of good standing referred to below (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the state of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party), (iii) in relation to each Loan Party incorporated or established in Germany, (A) an up-to-date (aktuell) certified commercial register extract (beglaubigter Handelsregisterauszug), articles of association (Satzung) of each such Loan Party, copies of any by-laws as well as a list of shareholders (Gesellschafterliste) (if applicable), (B) a copy of resolutions signed by all the holders of the issued shares of each such Loan Party and, if applicable, a copy of a resolution of the supervisory board (Aufsichtsrat) and/or advisory board (Beirat) of each such Loan Party, approving the terms of, and the transactions contemplated by this Amendment and the other Loan Documents, (C) a specimen of the signature of each person authorized to execute this Amendment, any other Loan Document and other documents and notices to be signed and/or dispatched by each such Loan Party under or in connection with this Amendment and/or the other Loan Documents to which each such Loan Party is a party and (D) a certificate of an authorized signatory of each such Loan Party certifying that each copy document relating to it specified in (A) to (C) above is correct, complete and in full force and effect as at a date no earlier than the Eighth Amendment Effective Date, (iv) in relation to the Luxembourg Loan Party, (A) an up-to-date electronic certified true and complete excerpt of the Luxembourg Companies Register dated no earlier than one Business Day prior to the Amendment Effective Date, and (B) an up-to-date electronic certified true and complete certificate of non-registration of judgments (certificat de non-inscription d’une décision judiciaire), issued by the Luxembourg Companies Register no earlier than one Business Day prior to the Eighth Amendment Effective Date and reflecting the situation no more than two Business Days prior to the Amendment Effective Date certifying that, as of the date of the day immediately preceding such certificate, the Luxembourg Loan Party has not been declared bankrupt (en faillite), and that it has not applied for general settlement or is composition with creditors (concordat préventif de faillite), controlled management (gestion contrôlée), or reprieve from payment (sursis de paiement), judicial or voluntary liquidation (liquidation judiciaire ou volontaire), such other proceedings listed at Article 13, items 2 to be a party;
12 and Article 14 of the Luxembourg Act dated December 19, 2002 on the Register of Commerce and Companies, on Accounting and on Annual Accounts of the Companies (as amended from time to time) (and which include foreign court decisions as to faillite, concordat or analogous procedures according to European Insolvency Regulation) and (v) in relation to each Loan Party incorporated or established in Italy, (A) a copy of the General constitutional documents of such Loan Party, (B) a copy of a resolution of the board of directors of such Loan Party (1) approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party and resolving that it execute, deliver and perform the Loan Documents to which it is a party, (2) authorizing a specified person or persons to execute the Loan Documents to which it is a party on its behalf, (3) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the Loan Documents to which it is a party; and (4) authorizing the Borrower Representative to act as its agent in connection with the Loan Documents, (C) a specimen of the signature of each person authorized by the resolution referred to in the previous paragraph (B) in relation to the Loan Documents and related documents, (D) an up-to-date electronic certified true and complete certificate of good standing (certificato di iscrizione e vigenza), issued by the relevant Companies Register (Registro delle Imprese) no earlier than three Business Days prior to the Amendment Effective Date confirming that no insolvency procedures have been started in relation to each relevant Loan Party incorporated or established in Italy, and (E) a certificate of an authorized signatory of such Loan Party certifying that each copy document relating to it is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the Eighth Amendment Effective Date and (vi) in relation to each Loan Party incorporated or established in Poland, (A) a copy of the constitutional documents of such Loan Party, (B) a copy of the shareholder's resolution of such Loan Party (1) approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party and resolving that it execute, deliver and perform the Loan Documents to which it is a party, (2) authorizing a specified person or persons to execute the Loan Documents to which it is a party on its behalf, (3) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the Loan Documents to which it is a party; and (4) authorizing the Borrower Representative to act as its agent in connection with the Loan Documents, (C) a specimen of the signature of each person authorized by the resolution referred to in the previous paragraph (B) in relation to the Loan Documents and related documents, (D) an up-to-date electronic print-out from the commercial register (informacja odpowiadająca odpisowi aktualnemu z rejestru przedsiębiorców KRS) no earlier than one Business Day prior to the Amendment Effective Date confirming that no insolvency procedures have been started in relation to the relevant Loan Party, and (E) a certificate of an authorized signatory of such Loan Party certifying that each copy document relating to it is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the Eighth Amendment Effective Date;
a. the Amendment Arranger shall have received all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Amendment Arranger, for which invoices have been presented to the Parent at least three Business Days prior to the Eighth Amendment Effective Date, on or before the Eighth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
b. the Administrative Agent shall have received evidence reasonably satisfactory received:
a. all fees and expenses agreed to it by the Borrowers or the Borrower Representative that are due and payable to the U.S. Borrower has given an irrevocable call notice Administrative Agent, for which invoices have been presented to redeem all 2009 Notes outstanding the Parent at least three Business Days prior to the Eighth Amendment Effective Date, on or before the First Eighth Amendment Effective Date (including reasonable and has taken such other steps in connection with documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the redemption proceeds of the 2009 Notes as Incremental Revolving Loans;
b. for distribution to each Existing Revolving Lender, an amount equal to the General Administrative Agent may reasonably require; and
sum of (vix) the General Administrative Agent principal of and unpaid interest accrued to the Eighth Amendment Effective Date on the outstanding Revolving Loans of such Existing Revolving Lender and (y) all fees and other amounts owing to or accrued for the account of such Existing Revolving Lender under the Existing Credit Agreement in respect of such Revolving Loans and such Existing Revolving Lender’s Revolving Credit Commitments (including any amounts under Section 3.06 of the Existing Credit Agreement);
c. for distribution to each Exchanging Revolving Lender that shall have received evidence reasonably satisfactory delivered (by facsimile or otherwise) an executed signature page to it that a Revolving Lender Consent, and released such signature page, on or prior to 12:00 p.m. (New York time) on April [•], 2019, a non-refundable special consent fee in an amount equal to 0.45% multiplied by the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments held by such Exchanging Revolving Lender immediately prior to giving effect to the transactions contemplated by this Amendment;
a. for distribution to each Increasing Revolving Lender that shall have delivered (by facsimile or otherwise) an executed signature page to a Revolving Lender Consent, and released such signature page, on or prior to 12:00 p.m. (New York time) on April [•], 2019, a non-refundable special new money fee in an amount equal to 0.75% multiplied by (a) the First Amendment Effective Date (principal amount of the Incremental Revolving Commitments held by such Increasing Revolving Lender immediately after giving effect to the minimum transactions contemplated by this Amendment minus (b) the principal amount of the Revolving Credit Commitment Reduction of 33.33Commitments held by such Increasing Revolving Lender immediately prior to giving effect to the transactions contemplated by this Amendment; and
b. for distribution to each Additional Revolving Lender that shall have delivered (by facsimile or otherwise) an executed signature page to a Revolving Credit Facility Joinder, and released such signature page, on or prior to 12:00 p.m. (New York time) on April [•], 2019, a non-refundable special new money fee in an amount equal to 0.75% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 multiplied by the principal amount of the Existing Credit Agreement) will be not less than $700,000,000Incremental Revolving Commitments held by such Additional Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Anything contained in this Amendment to the contrary notwithstanding, the terms and provisions of this Amendment shall only become effective on upon the date (the “First Amendment Effective Date”) on which all satisfaction of the following additional conditions precedent precedent:
(a) Congress shall have been satisfied received an executed original or waivedexecuted original counterparts (as the case may be) of this Amendment together with the following, each of which shall be in form and substance satisfactory to Congress:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLPC Fourth Restated Note;
(ii) certified resolutions of the General Administrative Agent shall have received an executed Acknowledgment Board of Directors of LPC duly authorizing the execution and Consent, in the form set forth at the end delivery of this Amendment, from each Loan Party signatory thereto;Amendment and the instruments and transactions hereunder; and
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment between LCI and Congress with respect to the General Administrative Agent on or prior LCI Financing Agreements and the documents and instruments required thereunder and the satisfaction of all conditions precedent to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on effectiveness thereof (the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and "March 1997 LCI Amendment").
(b) Arrangements satisfactory to Congress shall be made by LPC and LCI such that the proceeds of the March 1997 Additional LPC Term Loan shall be used as required herein and such that the proceeds of the March 1997 Additional LCI Term Loan (as defined in the March 1997 LCI Amendment) shall be used as required therein, and that, contemporaneously therewith:
(i) CIT shall release all other fees of its liens and amounts due security interests in the assets and payable on or prior properties of LPC which constitute "CIT Collateral" pursuant to the First Amendment Effective Date for which invoices have been presentedSubordination Agreement between CIT and Congress, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentas amended;
(ivii) the General Administrative Agent CIT and Congress shall have received such certificates of resolutions or other actionenter into an agreement, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority in form and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably substance satisfactory to it that Congress, terminating or amending the U.S. Borrower has given an irrevocable call notice Subordination Agreement dated as of January 17, 1996 between CIT and Congress, as amended, to redeem all 2009 Notes outstanding on provide for, among other things, the First Amendment Effective Date and has taken such other steps release referred to in connection with the redemption clause (i) of the 2009 Notes as the General Administrative Agent may reasonably requirethis paragraph 12(b); and
(viiii) the General Administrative Agent LPC shall have received evidence reasonably satisfactory delivered to it that Congress a payoff letter from Chase, setting forth the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 Rochester IRB Balance as of the Existing Credit Agreementdate hereof, and shall have authorized Congress to disburse a portion of the March 1997 Additional LPC Term Loan directly to Chase in payment thereof.
(c) will All representations and warranties contained herein, in the Accounts Agreement and in the other Financing Agreements shall be not less than $700,000,000true and correct in all material respects; and
(d) No Event of Default shall have occurred and no event shall have occurred or condition be existing which, with notice or passage of time or both, would constitute an Event of Default.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date first Business Day (the “First Amendment No. 1 Effective Date”) on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution from each European Tranche Term Loan Lender with a European-1 Tranche Term Loan Commitment and from Additional European-1 Tranche Term Loan Lenders having Additional European-1 Tranche Term Loan Commitments equal in principal amount to the amount of European Tranche Term Loans held by Non-Consenting European Tranche Term Loan Lenders, (ii) from each Tranche A Term Loan Lender which has delivered an executed with a Tranche A-1 Term Loan Commitment and from Additional Tranche A-1 Term Loan Lenders having Additional Tranche A-1 Term Loan Commitments equal in principal amount to the amount of Tranche A Term Loans held by Non-Consenting Tranche A Term Loan Lenders, (iii) from each Tranche B Term Loan Lender with a Tranche B-1 Term Loan Commitment and from Additional Tranche B-1 Term Loan Lenders having Additional Tranche B-1 Term Loan Commitments equal in principal amount to the amount of Tranche B Term Loans held by Non-Consenting Tranche B Term Loan Lenders, (iv) from the Administrative Agent and (v) from each Borrower and each Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent on or (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Parent Borrower shall have provided the Administrative Agent with a Notice of Borrowing two Business Days prior to the First Amendment No. 1 Effective Date, an amendment fee equal Date with respect to 1.00% the borrowing of such Tranche A-1 Term Lender’s outstanding Loans and Tranche B-1 Term Loans on the First Amendment No. 1 Effective Date Date;
(it being agreed that c) The European Subsidiary Borrower shall have provided the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or with a Notice of Borrowing three Business Days prior to the time that Amendment No. 1 Effective Date with respect to the General borrowing of European-1 Tranche Term Loans on the Amendment No. 1 Effective Date;
(d) Each Tranche A-1 Term Loan Lender shall have received, if requested at least three Business Days prior to the date on which each of the other conditions to the Amendment No. 1 Effective Date have been met, one or more Tranche A-1 Term Notes payable to the order of such Lender duly executed by the Parent Borrower in substantially the form of Exhibit K-1 to the Credit Agreement, as modified by this Amendment, evidencing its Tranche A-1 Term Loans;
(e) Each Tranche B-1 Term Loan Lender shall have received, if requested at least three Business Days prior to the date on which each of the other conditions to the Amendment No. 1 Effective Date have been met, one or more Tranche B-1 Term Notes payable to the order of such Lender duly executed by the Parent Borrower in substantially the form of Exhibit K-2 to the Credit Agreement, as modified by this Amendment, evidencing its Tranche B-1 Term Loans;
(f) Each European-1 Tranche Term Loan Lender shall have received, if requested at least three Business Days prior to the date on which each of the other conditions to the Amendment No. 1 Effective Date have been met, one or more European-1 Tranche Term Notes payable to the order of such Lender duly executed by the Parent Borrower in substantially the form of Exhibit K-4 to the Credit Agreement, as modified by this Amendment, evidencing its European-1 Tranche Term Loans;
(g) The Parent Borrower shall have paid to all Tranche A Term Loan Lenders on the Amendment No. 1 Effective Date, simultaneously with the making of Tranche A-1 Term Loans under the Credit Agreement, all accrued and unpaid interest (including any Reserve Amount) on the Tranche A Term Loans to, but not including, the Amendment No. 1 Effective Date;
(h) The Parent Borrower shall have paid to all Tranche B Term Loan Lenders on the Amendment No. 1 Effective Date, simultaneously with the making of Tranche B-1 Term Loans under the Credit Agreement, all accrued and unpaid interest (including any Reserve Amount) on the Tranche B Term Loans to, but not including, the Amendment No. 1 Effective Date;
(i) The European Subsidiary Borrower shall have paid to all European Tranche Term Loan Lenders on the Amendment No. 1 Effective Date, simultaneously with the making of European-1 Tranche Term Loans under the Credit Agreement, all accrued and unpaid interest (including any Reserve Amount) on the European Tranche Term Loans to, but not including, the Amendment No. 1 Effective Date;
(j) The Administrative Agent has shall have received the executed counterparts legal opinions, in form and substance reasonably satisfactory to the Administrative Agent, of this Amendment from (a) S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, special New York counsel to the Majority LendersParent Borrower, as determined by the General Administrative Agent in its sole discretion) and (b) all other R▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel of the Parent Borrower and (c) Bass, B▇▇▇▇ & S▇▇▇ PLC, special Tennessee counsel to certain of the U.S. Guarantors;
(k) The Borrowers shall have paid (i) the Agents the fees and in the amounts due and payable previously agreed in writing to be received on or prior to the First Amendment No. 1 Effective Date for which invoices have been presented, including and (ii) the Administrative Agent all reasonable out-of-pocket costs and expenses (including including, without limitation the reasonable fees, charges and disbursements of counselC▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ llp, counsel for the Agents, and local counsel for the Agents) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) of the General Administrative Agent shall for which invoices have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as been presented prior to the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireClosing Date; and
(vil) At the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount time of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (and immediately after giving effect to the minimum Revolving Credit Commitment Reduction Amendment no Default or Event of 33.33% Default has occurred and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000is continuing.
Appears in 1 contract
Sources: Credit Agreement (Hca Inc/Tn)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on and the date (obligation of the “First Amendment Effective Date”) on which all Banks to make Revolving Credit Loans under their increased Commitments is subject to the satisfaction of the following conditions precedent have been satisfied or waivedconditions:
(A) Replacement Revolving Credit Notes in the principal amount of the increased Commitments shall have been delivered to the Banks;
(B) The representations and warranties of the Borrower contained in Article 5 of the Credit Agreement shall be true as though such representations and warranties had been made today, except (i) for representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties shall continue to be true as of the General Administrative Agent specific dates or times referred to therein and (ii) as indicated on the updated Credit Agreement disclosure schedules attached hereto;
(C) The Borrower shall have received performed and complied with all covenants and conditions of the Credit Agreement as amended hereby;
(D) No Event of Default or Potential Default shall have occurred and be continuing or shall exist;
(E) No Material Adverse Change in the Borrower or any of its Subsidiaries shall have occurred since the date of the Borrower's financial statements most recently reviewed by the Banks;
(F) The Borrower shall have delivered to the Agent for the benefit of each Bank a counterpart certificate of the Secretary or Assistant Secretary of the Borrower, certifying as to (i) all action taken by the Borrower in connection with this Amendment, executed the replacement Revolving Credit Notes, and delivered by a duly authorized officer of the U.S. Borrowerany related Loan Documents (collectively, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below"Amendment Documents"); provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in names of the form set forth at the end of officer or officers authorized to sign this Amendment, from each the replacement Revolving Credit Notes, and the related Loan Party signatory thereto;
Documents; and (iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart absence of this Amendment to any changes in the General Administrative Agent certificate of incorporation and bylaws of the Borrower as they were in effect on or prior to March 31, 1997, the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on Closing Date under the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentCredit Agreement;
(ivG) the General Administrative Agent The Borrower shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers delivered to the Agent for the benefit of each Loan Party Bank a written opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, general counsel to the Borrower, as to the corporate existence and good standing of the Borrower; the due authorization, execution, delivery and enforceability of the Amendment Documents; the absence of conflicts between the Amendment Documents and the organizational documents of the Borrower, applicable laws, and other debt obligations of the Borrower; the absence of material litigation or claims against the Borrower; and such other matters as the General Administrative Agent may reasonably require evidencing request;
(H) The Borrower shall have delivered to the identityAgent satisfactory evidence that the "Majority Holders" under the Alco Note have consented to the increase in the amount of "Superior Debt" permitted under the Alco Note to $125,000,000, authority plus interest; and
(I) The Borrower shall have paid to the Agent, for itself and capacity for the account of each Responsible Officer thereof authorized to act as a Responsible Officer the Banks, all commitment and other fees due in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Amendment.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Anything contained in this Amendment to the contrary notwithstanding, the terms and provisions of this Amendment shall only become effective on upon the date (the “First Amendment Effective Date”) on which all satisfaction of the following additional conditions precedent precedent:
(a) Congress shall have been satisfied received an executed original or waivedexecuted original counterparts (as the case may be) of this Amendment together with the following, each of which shall be in form and substance satisfactory to Congress:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLCI Fourth Restated Note;
(ii) certified resolutions of the General Administrative Agent shall have received an executed Acknowledgment Board of Directors of LCI duly authorizing the execution and Consent, in the form set forth at the end delivery of this Amendment, from each Loan Party signatory thereto;Amendment and the instruments and transactions hereunder; and
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment between LPC and Congress with respect to the General Administrative Agent on or prior LPC Financing Agreements and the documents and instruments required thereunder and the satisfaction of all conditions precedent to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on effectiveness thereof (the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and "March 1997 LPC Amendment").
(b) Arrangements satisfactory to Congress shall be made by LPC such that the proceeds of the March 1997 Additional LPC Term Loan (as defined in the March 1997 LPC Amendment) shall be used as required therein, and that, contemporaneously therewith:
(i) CIT shall release all other fees of its liens and amounts due security interests in the assets and payable on or prior properties of LPC which constitute "CIT Collateral" pursuant to the First Amendment Effective Date for which invoices have been presentedSubordination Agreement between CIT and Congress, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentas amended;
(ivii) the General Administrative Agent CIT and Congress shall have received such certificates of resolutions or other actionenter into an agreement, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority in form and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably substance satisfactory to it that Congress, terminating or amending the U.S. Borrower has given an irrevocable call notice Subordination Agreement dated as of January 17, 1996 between CIT and Congress, as amended, to redeem all 2009 Notes outstanding on provide for, among other things, the First Amendment Effective Date and has taken such other steps release referred to in connection with the redemption clause (i) of the 2009 Notes as the General Administrative Agent may reasonably requirethis paragraph 12(b); and
(viiii) the General Administrative Agent LPC shall have received evidence reasonably satisfactory delivered to it that Congress a payoff letter from Chase, setting forth the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 Rochester IRB Balance as of the Existing Credit Agreementdate hereof, and shall have authorized Congress to disburse a portion of the March 1997 Additional LPC Term Loan directly to Chase in payment thereof.
(c) will All representations and warranties contained herein, in the Accounts Agreement and in the other Financing Agreements shall be not less than $700,000,000true and correct in all material respects; and
(d) No Event of Default shall have occurred and no event shall have occurred or condition be existing which, with notice or passage of time or both, would constitute an Event of Default.
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Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (such date, if any, the “First Fifth Amendment Effective Date”) on which all each of the following conditions precedent have set forth below has been satisfied or waivedsatisfied:
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Borrower, the Guarantor Subsidiaries and the Consenting Lenders constituting the Required Lenders, as determined by the General Administrative Agent in its sole discretion) and .
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a certificate of an officer of each Credit Party certifying that attached thereto is (i) a true, correct and complete copy of resolutions duly adopted by the board of directors (or other governing body) of such Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment, (ii) an incumbency of the officers or authorized representatives of such Credit Party executing this Amendment and the other Credit Documents and (iii) a good standing certificate from the applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of such Credit Party.
(c) No Default or Event of Default shall exist on such Fifth Amendment Effective Date immediately prior to or after giving effect to this Amendment.
(d) The Administrative Agent shall have received the Fifth Amendment Fee in full and cash.
(e) The representations and warranties in the Credit Documents will be true and correct in all other fees material respects (except for representations and amounts due warranties that are already qualified by materiality, which representations and payable warranties will be true and correct in all respects) immediately prior to, and immediately after giving effect to, this Amendment on or the Fifth Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties will have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date.
(f) All costs and, to the extent invoiced prior to the First Fifth Amendment Effective Date for which invoices have been presentedDate, expenses (including all reasonable reasonable, documented, out-of-pocket legal fees and expenses (including reasonable fees, charges of consultants and disbursements of counselother advisors) required and other compensation payable to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall and ▇▇▇▇▇ Fargo Securities, LLC will have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect been paid to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000extent then due.
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Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all Acceptance of the foregoing amendments by the Agent on behalf of the Banks shall be subject, without limitation, to the following conditions precedent conditions:
(a) All Real Estate owned by the Joint Ventures shall constitute Eligible Real Estate, excluding compliance with subsection (a) of the definition of "Eligible Real Estate" and compliance with the requirements set forth in subsections (a), (b), (c), (d), (e), (f), (g), (h), (i), (l), (n), (p), (r) of the definition of "Eligible Real Estate Qualification Documents," provided that the Majority Banks also shall receive satisfactory evidence of title to such Real Estate.
(b) The Borrower shall have been satisfied provided evidence that the underlying assets of the Joint Ventures are not and will not be subject to any liens or waivedencumbrances except for liens and encumbrances expressly permitted by the Joint Venture Pledge Agreement.
(c) The legal documentation of each Joint Venture shall be satisfactory to the Banks and their counsel.
(d) The Agent shall have received a first prior perfected lien in the Joint Venture Collateral in the form of a Joint Venture Pledge Agreement attached hereto as Exhibit A, supported by such legal documentation and opinions of legal counsel as shall be satisfactory to the Banks and their counsel.
(e) The Joint Venture partners shall have consented to the pledges by the Borrower of the Joint Venture Collateral. Such consents will allow:
(i) the assignment to the Agent for the benefit of the Banks of the Joint Venture Collateral, (ii) the transfer of full legal title in the Joint Venture Collateral to the Agent for the benefit of the Banks upon election by the Agent after the occurrence of an Event of Default, (iii) the Agent to transfer the Joint Venture Collateral to a third party (subject only to a right of first refusal on the part of the other joint venturer) and (iv) the substitution of new management for the Joint Ventures upon the occurrence of an Event of Default, provided the new management is experienced, of good reputation and comparable to the existing manager in terms of scope of service and cost. The Banks shall receive a favorable legal opinion of outside counsel as to the effectiveness of such consents and the availability of remedies.
(f) The Indigo multifamily housing project shall have been removed from the Collateral securing the Credit Agreement.
(g) New Revolving Credit Notes shall have been issued by the Borrower to Mellon Bank, N.A. in the principal amount of $25,000,000 and to FNBB in the principal amount of $25,000,000; and the Agent shall promptly return to the Borrower for cancellation the Revolving Credit Notes initially delivered.
(h) Each of the Banks shall have received the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Administrative Counsel to the Borrower, with respect to this Amendment, the Joint Venture Pledge Agreement and other documents required to be delivered in connection with this Amendment, including without limitation, the consents referred to in subparagraph (e) of this Section 4.
(i) Each of the Banks shall have received a Compliance Certificate dated as of the date hereof demonstrating compliance with each of the covenants calculated therein as of March 31, 1996.
(j) All proceedings in connection with the transactions contemplated by this Amendment shall be reasonably satisfactory in form and substance to the Majority Banks and the Agent's Special Counsel, and the Agent shall have received all information and such counterpart originals or certified copies of such documents and such other Certificates, opinions or documents as the Majority Banks and the Agent's Special Counsel may reasonably require.
(k) Each of the Banks shall have received from the REIT and the Borrower a counterpart copy, certified as of this Amendmenta date in 1995 or 1996 by the appropriate officer of each State in which the REIT, executed the Borrower or any Subsidiary or Nominee is organized and delivered certified by a duly authorized officer of the U.S. BorrowerREIT to be true and complete, of each amendment to the certificate of incorporation of the REIT or the certificate of limited partnership of the Borrower and of each organizational document (or amendment thereto) of each Subsidiary and Nominee.
(l) All action on the part of the REIT, the other BorrowersBorrower and each Subsidiary and Nominee necessary for the valid execution, delivery and performance by each of the REIT, the Majority Lenders Borrower and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment such Subsidiary and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart Nominee of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment No. 3 and the other Loan Documents to which such Loan Party it is a party or is to be become a party;
(v) party shall have been duly and effectively taken, and evidence thereof satisfactory to the General Administrative Agent shall have received evidence reasonably satisfactory been provided to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption each of the 2009 Notes as Banks. Each of the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent Banks shall have received evidence reasonably satisfactory to it that the aggregate principal amount from each of the Tranche A U.S. Revolving Credit Commitments on REIT, the First Amendment Effective Date Borrower and each applicable Subsidiary and Nominee true copies of its by-laws and the resolutions adopted by its shareholders and board of directors, partners, beneficiaries and trustees, as the case may be, authorizing the transactions described herein, each certified by its clerk, secretary, trustee or authorized partner as of a recent date to be true and complete.
(after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 m) Each of the Existing Credit AgreementBanks shall have received from the REIT, the Borrower and each applicable Subsidiary and Nominee an incumbency certificate, dated as of the effective date of this Amendment No. 3, signed by a duly authorized officer of the REIT or officer, trustee or partner of each applicable Subsidiary and Nominee and giving the name and bearing a specimen signature of each individual who shall be authorized: (a) will be not less than $700,000,000to sign, in the name and on behalf of the REIT, the Borrower and each such Subsidiary and Nominee, each of the Loan Documents to which the REIT, the Borrower or such Subsidiary or Nominee is or is to become a party; (b) to make Loan and Conversion Requests; and (c) to give notices and to take other action on behalf of the REIT or the Borrower under the Loan Documents.
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Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all is subject to satisfaction of the following conditions precedent have been satisfied or waivedprecedent:
(ia) the General Administrative Agent shall have received a counterpart copy of this Amendment (including the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans;
(b) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iic) On the General Administrative date hereof, Borrower shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an executed Acknowledgment and Consentamount equal to $6,000,000, in which $6,000,000 voluntary prepayment of the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent Term B Loans shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment be applied to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption scheduled installments of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date Term B Loans (after giving effect to this Amendment) in the minimum Revolving Credit Commitment Reduction inverse order of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Existing Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit AgreementAgreement and the other Loan Documents; and
(f) will Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be not less than $700,000,000a post-closing obligation by Agent, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agent.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date first written above (the “First Second Amendment Effective Date”) on which all upon the satisfaction (or written waiver by Required Lenders) of the following conditions precedent precedent:
(a) The Administrative Agent shall have been satisfied or waivedreceived this Amendment duly executed and delivered by the Lenders constituting the Required Lenders and the Loan Parties;
(b) The Administrative Agent’s and the Second Amendment Term Loan Lenders’ receipt of items (iii), (v) through (x) and (xii), below and the Lenders’ receipt of items (i), (ii), (iii), (iv) and (xii) below, each properly executed by a Responsible Officer of the applicable Loan Party, each dated as of the Second Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Second Amendment Effective Date) and each in form and substance reasonably satisfactory to the Required Lenders and their respective legal counsel:
(i) a Warrant (substantially in the General Administrative Agent shall have received a counterpart form of this AmendmentExhibit B attached hereto) (each an “Incremental Warrant”) issued to each Second Amendment Term Loan Lender, duly executed and delivered by a duly authorized officer an Authorized Officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentHoldings;
(ii) a Note executed by the General Administrative Agent shall have received an executed Acknowledgment and Consent, Borrower in favor of each Second Amendment Term Loan Lender requesting a Note in the form set forth at amount of such Second Amendment Term Loan Lender’s Commitment with respect to the end of this Amendment, from each Second Amendment Term Loans being made by such Second Amendment Term Loan Party signatory theretoLender;
(iii) a Secretary’s certificate for each Loan Party certifying as to (A) true and complete copies of all Organization Documents of such Loan Party attached thereto, (B) resolutions of the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart Board of Directors or other organizational action authorizing execution, delivery and performance of this Amendment and all Loan Documents to the General Administrative Agent on or prior to the First Amendment Effective Datewhich such Loan Party is a party executed in connection herewith, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (bC) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses incumbency of officers (including reasonable fees, charges and disbursements of counselspecimen signatures) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party executed in connection herewith;
(iv) certification from any applicable Governmental Authority as the Required Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its jurisdiction of organization and in any other jurisdiction in which the failure to be so qualified could reasonably be expected to have a partyMaterial Adverse Effect, including certificates of good standing and qualification to engage in business in each applicable jurisdiction;
(v) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the General Loan Parties, each addressed to the Administrative Agent shall have received evidence and each Second Amendment Term Loan Lender and their successors and assigns, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably satisfactory to it that request;
(vi) certificates of Responsible Officers of the U.S. Borrower has given an irrevocable call notice to redeem Agent or the applicable Loan Parties either (A) identifying all 2009 Notes outstanding on the First Amendment Effective Date consents, licenses and has taken such other steps approvals required in connection with the redemption execution, delivery and performance by the Borrower and the validity against each such Loan Party of this Amendment and Loan Documents to which it is a party executed in connection herewith, and stating that such consents, licenses and approvals shall be in full force and effect, and attaching true and correct copies thereof or (B) stating that no such consents, licenses or approvals are so required;
(vii) certificates of Responsible Officers of Holdings certifying that Holdings has reserved sufficient shares of Common Stock for issuance upon exercise of the 2009 Notes as the General Administrative Agent may reasonably require; andIncremental Warrants;
(viviii) a certificate signed by a Responsible Officer of the General Administrative Borrower Agent shall have received evidence reasonably satisfactory to it certifying (A) that the aggregate principal amount conditions specified in Section 3(b) have been satisfied and (B) as to the matters described in Section 3(e);
(ix) a certificate signed by the Chief Financial Officer or the Chief Accounting Officer of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (Borrower Agent certifying that, after giving effect to the minimum Revolving entering into the Loan Documents executed in connection with this Amendment and the consummation of all of the transactions set forth in this Amendment, (A) the Borrower is Solvent and (B) the Loan Parties, taken as a whole, are Solvent;
(x) a Borrowing Request with respect to the Second Amendment Term Loans;
(xi) evidence satisfactory to the Required Lenders of the consummation (in compliance with all applicable laws and regulations, with the receipt of all material governmental, shareholder and third party consents and approvals relating thereto) of the transactions set forth in this Amendment; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders may reasonably require.
(i) So long as requested by any Second Amendment Term Loan Lender at least five days prior to the Second Amendment Effective Date, the Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower and (ii) so long as requested by the Administrative Agent or any Second Amendment Term Loan Lender at least ten days prior to the Second Amendment Effective Date, the Borrower shall have provided to the Administrative Agent and each requesting Second Amendment Term Loan Lender the documentation and other information so requested in connection with applicable “know your customer” and Anti-Money Laundering Laws or Anti-Corruption Laws, including the PATRIOT Act.
(d) The Borrower shall have paid the Amendment Fee in-kind to each Lender party hereto in accordance with Section 2(b) of this Amendment.
(e) Any fees required to be paid on or before the Second Amendment Effective Date (including, for the avoidance of doubt, the Amendment Fee) shall have been, or concurrently with the satisfaction of the requirements in this Section 3, will be, paid.
(f) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent and the Second Amendment Term Loan Lenders to the extent invoiced prior to or on the Second Amendment Effective Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through such date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Second Amendment Term Loan Lenders, respectively).
(g) The representations and warranties of the Loan Parties contained in Article VI of the Amended Credit Commitment Reduction of 33.33% Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and any simultaneous addition correct in all material respects (or in the case of any new U.S. Revolving Lenders representation or warranty subject to a materiality qualifier, true and correct in all respects) on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in the case of any representation or warranty subject to a materiality qualifier, true and correct in all respects) as of such earlier date.
(h) No Default or Event of Default shall have occurred and be continuing, or would result from the extension of the Second Amendment Term Loans or from the application of the proceeds thereof.
(i) The Borrower shall have paid all fees, charges and disbursements of the Administrative Agent (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower pursuant to Section 2.6 the terms of the Existing Amended Credit Agreement;
(j) will The Borrower shall have paid all fees, charges and disbursements of Coliseum (including fees, charges and disbursements of Debevoise & ▇▇▇▇▇▇▇▇ LLP, as advisors to Coliseum) required to be not less than $700,000,000reimbursed or paid by the Borrower pursuant to that certain Structuring Work Fee Letter, dated as of the date hereof, by and between the Borrower and Coliseum.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject solely to the date (the “First Amendment Effective Date”) on which all satisfaction or waiver of each of the following conditions precedent have been (the “Amendment No. 8 Effective Date Conditions”; and the date on which such conditions are satisfied or waived:, the “Amendment No. 8 Effective Date”):
(a) The Administrative Agent shall have received (i) from each Existing Amendment No. 6 Term Loan Lender with a Tranche B-5 Term Loan Commitment and from Additional Tranche B-5 Term Loan Lenders having Additional Tranche B-5 Term Loan Commitments equal in principal amount to the amount of Existing Amendment No. 6 Term Loans held by Non-Consenting Existing Amendment No. 6 Term Loan Lenders and Post-Closing Option Tranche B-5 Lenders, (ii) from the Administrative Agent, (iii) from the Required Lenders and (iv) from the Borrowers and each Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (including, for the avoidance of doubt, in each case of a Cashless Option Tranche B-5 Lender or Post-Closing Option Tranche B-5 Lender, an executed counterpart substantially in the form of Exhibit A hereto) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrowers shall have paid to all Existing Amendment No. 6 Term Loan Lenders on the Amendment No. 8 Effective Date, substantially concurrently with the making of Tranche B-5 Term Loans under the Amended Credit Agreement, all accrued and unpaid interest on the Existing Amendment No. 6 Term Loans to, but not including, the Amendment No. 8 Effective Date;
(c) The Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrowers and Morris, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇ LLP, as special Delaware counsel for the Borrowers. The Borrowers, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions;
(d) The Borrowers shall have paid (i) the General Agents the fees in the amounts previously agreed in writing to be received on the Amendment No. 8 Effective Date, and (ii) the Administrative Agent and the Amendment No. 8 Arranger as applicable, all reasonable costs and expenses of the Administrative Agent and the Amendment No. 8 Arranger, as applicable, for which invoices have been presented prior to the Amendment No. 8 Effective Date (including, without limitation, the reasonable and documented fees and out-of-pocket expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel for the Amendment No. 8 Arranger and the Administrative Agent with respect thereto);
(e) The Administrative Agent (or its counsel) shall have received (i) (A) a certificate of each of Holdings and the Borrowers, dated the Amendment No. 8 Effective Date, substantially in the form of Exhibit G to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer (or in the case of Holdings any Director or authorized agent of Holdings) and the Secretary or any Assistant Secretary of Holdings or the Borrowers (or in the case of Holdings any Director or authorized agent of Holdings), as applicable, and attaching the documents referred to in the following clause (B), and (B) (x) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrowers (or a duly authorized committee thereof) authorizing (I) the execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it is a party and (II) in the case of the Borrowers, the extensions of credit contemplated hereunder, (y) the Certificate of Incorporation and By-Laws, Certificate of Formation and Operating Agreement or other comparable organizational documents, as applicable, of Holdings and the Borrowers and (z) signature and incumbency certificates (or other comparable documents evidencing the same) of the Authorized Officers of Holdings and the Borrowers executing the Credit Documents to which it is a party or (ii) a certificate of Holdings on behalf of each Borrower, dated the Amendment No. 8 Effective Date and executed by an Authorized Officer of Holdings, certifying that, except as otherwise indicated therein, there have been no amendments, supplements or modifications since the Closing Date to the documents delivered on the Closing Date pursuant to Sections 6.3 and 6.4 of the Credit Agreement;
(f) The Administrative Agent shall have received a counterpart Notice of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders Borrowing with respect to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Tranche B-5 Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireLoans; and
(vig) At the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount time of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (and immediately after giving effect to the minimum Revolving Credit Commitment Reduction Amendment, no Event of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Default under Section 2.6 11.1 or Section 11.5 of the Existing Credit Agreement shall have occurred and be continuing. Each Additional Tranche B-5 Term Loan Lender party hereto and each Cashless Option Tranche B-5 Lender and Post-Closing Option Tranche B-5 Lender by delivering its signature page to this Amendment or a Consent to Eighth Amendment Agreement, as applicable, and providing its applicable Commitment on the Amendment No. 8 Effective Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to such Additional Tranche B-5 Term Loan Lender, Cashless Option Tranche B-5 Lender or Post-Closing Option Tranche B-5 Lender. The Administrative Agent shall notify the Lenders of the Amendment No. 8 Effective Date upon the occurrence thereof, and such notice and the effectiveness of this Amendment and the Amended Credit Agreement shall be conclusive and binding upon all of the Lenders and all of the other parties to the Credit Documents and each of their successors and assigns; provided that, failure to give any such notice shall not affect the effectiveness, validity or enforceability of this Amendment or the Amended Credit Agreement) will be not less than $700,000,000. The parties hereto, and each Cashless Option Tranche B-5 Lender and Post-Closing Option Tranche B-5 Lender, hereby agree that notwithstanding any other provision hereof, the Amendment No. 8 Effective Date is July 19, 2023.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (such date, if any, the “First Fourth Amendment Effective Date”) on which all each of the following conditions precedent have set forth below has been satisfied or waivedsatisfied:
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Borrower, the Guarantor Subsidiaries and the Consenting Lenders constituting the Required Lenders, as determined by the General Administrative Agent in its sole discretion) and .
(b) The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:
(i) a certificate of an officer of each Credit Party certifying that attached thereto is (A) a true, correct and complete copy of resolutions duly adopted by the board of directors (or other governing body) of such Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment, (B) an incumbency of the officers or authorized representatives of such Credit Party executing this Amendment and the other Credit Documents and (C) a good standing certificate form the applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of such Credit Party; and
(ii) opinions of counsel to the Credit Agreement addressed to the Administrative Agent and the Lenders with respect to this Amendment.
(c) Other than the Specified Events of Default, no Default or Event of Default shall exist on such Fourth Amendment Effective Date immediately prior to or after giving effect to this Amendment.
(d) On or after March 30, 2023, Borrower shall have repaid Twenty Million Dollars ($20,000,000) in principal amount of Revolving Loans (such repayment, the “Fourth Amendment Effective Date Prepayment”).
(e) Administrative Agent shall have received the Fourth Amendment Fee First Installment in full and cash.
(f) The representations and warranties in the Credit Documents will be true and correct in all other fees material respects (except for representations and amounts due warranties that are already qualified by materiality, which representations and payable warranties will be true and correct in all respects) immediately prior to, and immediately after giving effect to, this Amendment on or the Fourth Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties will have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date.
(g) All costs and, to the extent invoiced prior to the First Fourth Amendment Effective Date for which invoices have been presentedDate, expenses (including all reasonable reasonable, documented, out-of-pocket legal fees and expenses (including reasonable fees, charges of consultants and disbursements of counselother advisors) required and other compensation payable to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall and ▇▇▇▇▇ Fargo Securities, LLC will have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect been paid to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000extent then due.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) (I) from each Cashless Option Tranche B-1/B-3 Lender, (II) from Additional Tranche B-4 Term Loan Lenders having Additional Tranche B-4 Term Loan Commitments equal in principal amount to the sum of (x) the principal amount of Existing Term Loans held by Non-Consenting Existing Tranche B-1/B-3 Term Loan Lenders plus (y) the principal amount of Existing Term Loans for distribution which the “Post-Closing Settlement Option” was selected and (III) from each Revolving Credit Lender and 2020 Additional Revolving Credit Lender, which L▇▇▇▇▇▇ described in this clause (i) shall collectively constitute all Lenders after giving effect to each Term Lender which has delivered an executed this Amendment, (ii) from the Administrative Agent, and (iii) from the Borrower and Holdings, either (x) a counterpart of this Amendment (or, in the case of such Cashless Option Tranche B-1/B-3 Lenders, a Consent to Amendment No. 7) signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrower shall have paid (or caused to have been paid) to (i) all Existing Term Loan Lenders on or prior to the First Amendment No. 7 Effective Date, an amendment fee equal to 1.00% simultaneously with the making (or deemed making) of such Term Lender’s outstanding Tranche B-4 Term Loans under the Amended Credit Agreement, all accrued and unpaid interest on the First Existing Term Loans to, but not including, the Amendment No. 7 Effective Date and (it being agreed that ii) all Non-Consenting Existing Tranche B-1/B-3 Term Loan Lenders and all Post-Closing Option Tranche B-1/B-3 Lenders on the amendment fee is payable to a Amendment No. 7 Effective Date, simultaneously with the making (or deemed making) of Tranche B-4 Term Lender only if such Loans under the Amended Credit Agreement, all outstanding principal of their Existing Term Lender has delivered an Loans as of the Amendment No. 7 Effective Date;
(c) The Administrative Agent shall have received the executed counterpart legal opinion of this Amendment S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, special counsel to the General Credit Parties. The Borrower, Holdings and the Administrative Agent hereby instruct such counsel to deliver such legal opinion;
(d) The Borrower shall have paid (i) the Amendment No. 7 Arrangers and the Tranche B-4 Term Loan Lenders the fees in the amounts previously agreed in writing to be received on or prior to the time that Amendment No. 7 Effective Date and (ii) the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses (including including, without limitation the reasonable fees, charges and disbursements of counselL▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Administrative Agent and the Amendment No. 7 Arrangers) required of the Administrative Agent for which invoices have been presented prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe Amendment No. 7 Effective Date;
(ive) The representations and warranties set forth in Section 3 above shall be true and correct;
(f) The Administrative Agent (or its counsel) shall have received (A) a certificate of each of (x) Holdings and the Borrower, dated as of the Amendment No. 7 Effective Date, substantially in the form of Exhibit E to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer and the Secretary or any Assistant Secretary of Holdings and the Borrower, as applicable, and attaching the documents referred to in the following clause (B) and (B) (w) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrower authorizing (I) the General execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it is a party and the performance of the obligations under the Amended Credit Agreement and (II) in the case of the Borrower, the extensions of credit contemplated hereunder, (x) the Certificate of Incorporation and By-Laws or other comparable organizational documents, as applicable, of Holdings and the Borrower, (y) signature and incumbency certificates of the Authorized Officers of Holdings and the Borrower executing this Amendment and the other Credit Documents to which it is a party, and (z) a good standing certificate from the relevant Governmental Authority of the jurisdiction of organization of the Borrower and Holdings, dated the Amendment No. 7 Effective Date or a recent date prior thereto;
(g) The Administrative Agent shall have received such certificates a Notice of resolutions or other action, incumbency certificates and/or other certificates Borrowing in respect of Responsible Officers the Tranche B-4 Term Loans in accordance with Section 2.3 of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a partyAmended Credit Agreement;
(vh) the General The Administrative Agent shall have received evidence reasonably satisfactory a certificate of the Borrower certifying that after giving effect to it that the U.S. incurrence of the Tranche B-4 Term Loan Commitments, the Borrower has given an irrevocable call notice not incurred Indebtedness pursuant to redeem all 2009 Notes outstanding on Section 2.14 and Section 10.1(x) of the First Amendment Effective Date and has taken such other steps Credit Agreement in connection excess of the Maximum Incremental Facilities Amount, calculated in accordance with the redemption terms of the 2009 Notes as the General Administrative Agent may reasonably require; andCredit Agreement;
(vii) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that a certificate from the aggregate principal amount Chief Executive Officer, President, the Chief Financial Officer, the Treasurer, the Vice President-Finance, a Director, a Manager or any other senior financial officer of the Tranche A U.S. Revolving Credit Commitments on Borrower to the First Amendment Effective Date (effect that after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% transactions contemplated by this Amendment, the Borrower on a consolidated basis with its Restricted Subsidiaries is Solvent;
(j) The Tranche B-4 Term Loan Lenders shall have received prior to the Amendment No. 7 Effective Date such documentation and other information about the Borrower and the Guarantors as shall have been reasonably requested in writing by such Lender at least 10 days prior to the Amendment No. 7 Effective Date and as required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act; and
(k) If the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and any simultaneous addition of any new U.S. Revolving Lenders pursuant Tranche B-4 Term Loan Lender has provided its electronic delivery requirements, such Lender requesting a Beneficial Ownership Certification in writing to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Borrower at least 10 days prior to the Amendment No. 7 Effective Date shall have received prior to the Amendment No. 7 Effective Date, a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waived:
(such date, the “Eleventh Amendment Effective Date”); provided that the Required Lenders (excluding (i) Total Revolving Credit Outstandings for the General purposes of paragraph (a) of such definition and (ii) Required Lenders under paragraph (c) of such definition) shall not have objected to this Amendment within five (5) Business Days after the Administrative Agent has posted this Amendment to all Lenders.
(a) the Borrower Representative, each Revolving Credit Lender and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent;
(b) the Administrative Agent and Collateral Agent shall have received the Collateral Documents and other documentation identified on Schedule A-1 hereto, in each case in form and substance reasonably acceptable to the Administrative Agent;
(c) each of the representations and warranties contained in Section 4 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Eleventh Amendment Effective Date;
(d) at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Eleventh Amendment Effective Date, no Default or Event of Default exists;
(e) the Administrative Agent shall have received a counterpart of this Amendment, executed certificate dated the Eleventh Amendment Effective Date and delivered signed by a duly authorized officer Responsible Officer of the U.S. BorrowerBorrower Representative, confirming compliance with the other Borrowers, the Majority Lenders conditions set forth in Sections 3(c) and Extending Lenders to the extent required by clause (vi3(d) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenthereof;
(iif) the General Administrative Agent and Collateral Agent shall have received an executed Acknowledgment received, on behalf of itself and Consent, in the form set forth at Lenders on the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Eleventh Amendment Effective Date, an amendment fee equal to 1.00% a customary written opinion of such Term Lender’s outstanding Term Loans on local counsel as specified in Schedule A-2 hereto, in each case (i) dated the First Eleventh Amendment Effective Date Date, (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment ii) addressed to the General Administrative Agent on or prior and the Lenders and (iii) in form and substance reasonably satisfactory to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior covering such matters relating to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents as the Administrative Agent shall reasonably request; provided that counsel to which the Administrative Agent shall provide such Loan Party is a party or is opinions to the extent customary in any applicable jurisdiction to be a partymutually agreed;
(vg) the General Administrative Agent shall have received evidence reasonably satisfactory (i) a certificate of each Loan Party that is required to it that deliver the U.S. Borrower has given an irrevocable call notice Collateral Documents and other documentation identified on Schedule A-1 hereto pursuant to redeem all 2009 Notes outstanding on paragraph (a) above, dated the First Eleventh Amendment Effective Date and has taken executed by a Responsible Officer of such Loan Party, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its board of directors, members or other steps governing body (to the extent applicable) authorizing the execution, delivery and performance of the Collateral Documents and other documentation to which it is a party, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the Responsible Officer or authorized signatory of such Loan Party authorized to sign the Collateral Documents and other documentation to which it is a party and (C) certify that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by- laws or operating, management, partnership or similar agreement (to the extent applicable) and that such documents or agreements have not been amended since the date of the last amendment thereto shown on the certificate of good standing referred to below (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the state of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party), and (iii) in relation to each Loan Party incorporated or established in Italy, (A) a copy of the constitutional documents of such Loan Party, (B) a copy of a resolution of the board of directors or of the shareholder’s meeting of such Loan Party (1) approving the terms of, and the transactions contemplated by, the the Collateral Documents and other documentation to which it is a party and resolving that it execute, deliver and perform the Collateral Documents and other documentation to which it is a party, (2) authorizing a specified person or persons to execute the the Collateral Documents and other documentation to which it is a party on its behalf, (3) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the redemption the Collateral Documents and other documentation to which it is a party; and (4) authorizing the Borrower Representative to act as its agent in connection with the the Collateral Documents and other documentation to which it is a party, (C) a specimen of the 2009 Notes signature of each person authorized by the resolution referred to in the previous paragraph (B) in relation to the the Collateral Documents and other documentation to which it is a party, (D) an up-to-date electronic certified true and complete certificate of good standing (certificato di iscrizione e vigenza), issued by the relevant Companies Register (Registro delle Imprese) no earlier than three Business Days prior to the Amendment Effective Date confirming that no insolvency procedures have been started in relation to each relevant Loan Party incorporated or established in Italy, and (E) a certificate of an authorized signatory of such Loan Party certifying that each copy document relating to it is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the General Administrative Agent may reasonably requireEleventh Amendment Effective Date; and
(vih) all fees and expenses agreed to by the General Borrowers or the Borrower Representative that are due and payable to the Administrative Agent shall and the Collateral Agent, for which invoices have received evidence reasonably satisfactory been presented to it that the aggregate principal amount of Parent at least three Business Days prior to the Tranche A U.S. Revolving Credit Commitments Eleventh Amendment Effective Date, on or before the First Eleventh Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction including reasonable and documented out-of-pocket fees, expenses and disbursements of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000legal counsel).
Appears in 1 contract
Sources: Credit Agreement (Orion S.A.)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject solely to the date (the “First Amendment Effective Date”) on which all satisfaction or waiver of each of the following conditions precedent have been (the date on which such conditions are satisfied or waived:, the “Amendment No. 9 Effective Date”):
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution to from the Required Revolving Credit Lenders, (ii) from each Term Lender which has delivered an executed Letter of Credit Issuer directly and adversely affected by this Amendment and (iii) from the Borrowers, either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent on (which may include telecopy or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% other electronic transmission of a signed signature page of this Amendment) that such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to party has signed a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and Amendment; and
(b) The Borrowers shall have paid the Administrative Agent all other fees reasonable costs and amounts due and payable on or prior to expenses of the First Amendment Effective Date Administrative Agent for which invoices have been presentedpresented prior to the Amendment No. 9 Effective Date (including, including all without limitation, the reasonable and documented fees and out-of-pocket expenses (including reasonable feesof ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, charges as counsel for the Administrative Agent with respect thereto). Each Revolving Credit Lender and disbursements Letter of counsel) required Credit Issuer party hereto by delivering its signature page to this Amendment, shall be deemed to have consented to, approved or accepted or to be reimbursed satisfied with, each document or paid other matter required hereunder to be consented to or approved by any Loan Party hereunder or under any other Loan Document;
(iv) the General acceptable or satisfactory to such Revolving Credit Lender or Letter of Credit Issuer. The Administrative Agent shall have received notify the Lenders of the Amendment No. 9 Effective Date upon the occurrence thereof, and such certificates notice and the effectiveness of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Amended Credit Agreement shall be conclusive and binding upon all of the Lenders and all of the other Loan parties to the Credit Documents and each of their successors and assigns; provided that, failure to which give any such Loan Party is a party notice shall not affect the effectiveness, validity or is to be a party;
(v) enforceability of this Amendment or the General Administrative Agent shall have received evidence reasonably satisfactory to it Amended Credit Agreement. The parties hereto hereby agree that notwithstanding any other provision hereof, the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment No. 9 Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000is August 15, 2023.
Appears in 1 contract
Sources: Credit Agreement (GoDaddy Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First "Amendment Effective Date”") on which all upon (a) payment by the Borrower to the Agent, for the account of the following conditions precedent have been satisfied or waivedLender, an activation fee in the amount of $25,000 pursuant to Section 4.2(b) of the Loan Agreement, and (b) receipt by the Agent of the following, each in form and substance satisfactory to the Agent:
(i) the General Administrative Agent shall have received a counterpart counterparts of this Amendment, duly executed and delivered by a duly authorized officer of the U.S. each Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment Amended and Consent, Restated Revolving Credit Note in the form set forth at the end of this Amendment, from attached hereto as Annex A duly executed by each Loan Party signatory theretoBorrower;
(iii) an Acquisition Loan Note substantially in the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart form of this Amendment Exhibit B-3 attached to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an Loan Agreement duly executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documenteach Borrower;
(iv) certified copies of the General Administrative Agent shall have received such certificates articles of resolutions or incorporation and bylaws of Mobile Products, as in effect on the Amendment Effective Date, and with respect to the other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Borrowers and the other Loan Documents Guarantors, a certificate of an appropriate officer of such Borrowers and Guarantors to the effect that none of such documents relating to such Borrowers and Guarantors have been amended or otherwise modified since April 21, 1999 (with respect to Mid Bus and Brutzer) and July 31, 1998 (with respect to ▇▇▇▇▇▇▇, Bus, WCI, Capacity, Mobile, World Trans and Guarantors), the respective dates on which such documents were last delivered to Agent and Lender under the Loan Party is a party or is to be a partyAgreement;
(v) certificates of incumbency and specimen signatures with respect to each of the General Administrative Agent shall have received evidence reasonably satisfactory officers of the Borrowers and the Guarantors who is authorized to execute and deliver the Loan Documents to which it is a party and each other certificate, agreement or other document to be executed by the Borrowers and the Guarantors in connection with this Amendment;
(vi) a certificate evidencing the good standing of Mobile Products in the jurisdiction of its incorporation and in each other jurisdiction in which it is required to be qualified as a foreign corporation to transact business as presently conducted;
(vii) a certificate of the President of ▇▇▇▇▇▇▇ or of the Financial Officer that all representations and warranties of Borrowers set forth in the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on Loan Documents are true and correct as of the First Amendment Effective Date and has taken such other steps in connection with the redemption that no Default or Event of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date Default exists (after giving effect to this Amendment and the minimum Revolving Credit Commitment Reduction of 33.33% ▇▇▇▇▇▇ Acquisition), and any simultaneous addition of any new U.S. Revolving Lenders pursuant Agent and Lender shall be satisfied as to Section 2.6 the truth and accuracy thereof;
(viii) amendments or modifications to each of the Existing Credit Mortgages existing on the Amendment Effective Date and endorsements to related title insurance policies;
(ix) Certified copies of the executed Asset Purchase Agreement dated as of September 1, 2000, between ▇▇▇▇▇▇▇, Mobile Products, ▇▇▇▇▇▇, Inc., an Oklahoma corporation and Celstar Group, Inc., an Ohio corporation (the "▇▇▇▇▇▇ Acquisition") and all documents and agreements executed in connection with such Acquisition.
(x) Executed Mortgages on Acquired Real Estate in connection with the ▇▇▇▇▇▇ Acquisition and related title insurance policies.
(xi) Financing Statements duly executed and delivered by Mobile Products and ▇▇▇▇▇▇▇;
(xii) a Trademark Assignment duly executed and delivered by Mobile Products;
(xiii) a Patent Assignment duly executed and delivered by Mobile Products;
(xiv) a Collateral Assignment of Rights Under Acquisition Agreement, in form and substance satisfactory to the Agent, duly executed and delivered by Mobile Products and ▇▇▇▇▇▇▇;
(xv) will evidence of payment or arrangements for payment of all Debt and the termination or arrangements for termination of all Liens not permitted under the Loan Documents;
(xvi) a signed opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel for the Borrowers, and of such local counsel for the Borrowers as may be not less than $700,000,000required, opining as to such matters in connection with the transactions contemplated by this Amendment as the Agent or its special counsel may reasonably request;
(xvii) updated Schedules to the Loan Agreement as necessary to reflect accurately as of the Amendment No. 2 Effective Date the facts purported to be set forth therein;
(xviii) a consent duly executed by each Guarantor; and
(xix) such other documents and instruments as the Agent may reasonably request.
Appears in 1 contract
Sources: Loan and Security Agreement (Collins Industries Inc)
Conditions to Effectiveness of Amendment. This The effectiveness of the terms of this Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all be subject to satisfaction of the following conditions precedent have been satisfied or waived:(the date upon which this Amendment becomes effective, the “Amendment No. 3 Effective Date”):
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, duly executed and delivered by a duly authorized officer of each of the U.S. Top Borrower, the other BorrowersCo-Borrower, ▇▇▇▇▇▇▇▇ Travel Canada, Inc., an Alberta corporation (the “Canadian Parent Guarantor” and, together with the Co-Borrower, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by Subject Canadian Loan Parties”), each other Loan Party, the Administrative Agent, the Swing Line Lender, each L/C Issuer, each Revolver Increase Lender, each Revolving Lender and the other Lenders party hereto;
(iib) the General Administrative Agent Borrowers shall have received an executed Acknowledgment (i) paid, or caused to have been paid, to the Lead Arranger, all fees and Consent, other amounts due and payable in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of connection with this Amendment to the General Administrative Agent on or prior to the First date hereof, (ii) paid, or caused to have been paid, to the Administrative Agent, for the account of each Revolver Increase Lender, upfront fees in an amount equal to 0.30% of the aggregate principal amount of the 2023 Increased Revolving Commitments provided by the Revolver Increase Lenders on the Amendment No. 3 Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it fees being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersin all respects fully earned, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or the Amendment No. 3 Effective Date and non-refundable and non-credible thereafter and (iii) to the extent invoiced at least three Business Days prior to the First Amendment No. 3 Effective Date (or such shorter period as the Top Borrower may reasonably agree), paid or reimbursed the Administrative Agent for which invoices have been presented, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York counsel to the Administrative Agent, and ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian counsel to the Administrative Agent) required to be paid or reimbursed or paid by any Loan Party hereunder or under any other Loan Documentpursuant to Section 10.04 of the Credit Agreement;
(ivc) the General representations and warranties contained in Section 6, shall be true and correct in all material respects on and as of the Amendment No. 3 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, except that any such representation or warranty qualified by materiality or as to Material Adverse Effect shall be true and correct in all respects as so qualified;
(d) immediately prior to and after giving effect to this Amendment and the transactions contemplated hereby, no Event of Default shall have occurred and be continuing;
(e) the Administrative Agent shall have received a certificate, dated the Amendment No. 3 Effective Date and signed by a Responsible Officer of the Top Borrower, certifying as to the representations and warranties in Section 6(b) and (c);
(f) the Administrative Agent shall have received an amendment or joinder to the Guaranty joining (i) the Co-Borrower as a Guarantor of the Guaranteed Obligations (as defined in the Guaranty), other than the Revolving Loan Obligations and (ii) the Canadian Parent Guarantor as a Guarantor of the Guaranteed Obligations;
(g) the Administrative Agent shall have received lien search results covering the Subject Canadian Loan Parties, dated a date reasonably near to the Amendment No. 3 Effective Date;
(h) the Administrative Agent shall have received a notice of voluntary prepayment of the Initial Term Loans in an aggregate principal amount of $70,000,000 in accordance with Section 2.05(a) of the Credit Agreement (it being understood that each Initial Term Lender party hereto hereby waives the requirement to provide advance notice of such prepayment pursuant to Section 2.05(a) of the Credit Agreement);
(i) the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Amendment, the Amended Credit Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vj) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date such documents and has taken such other steps in connection with the redemption of the 2009 Notes certifications as the General Administrative Agent may reasonably require; andrequire to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where such Person is qualified to do business;
(vik) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount favorable opinions of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, corporate counsel to the minimum Revolving Credit Commitment Reduction of 33.33% Loan Parties, and any simultaneous addition of any new U.S. Revolving (ii) ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as Canadian counsel to the Loan Parties, in each case, addressed to the Administrative Agent; and
(l) the Top Borrower and the Co-Borrower shall have provided or caused to be provided the documentation and other information to the Lenders pursuant that are reasonably required by the applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, in each case, at least three Business Days prior to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Amendment No. 3 Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Viad Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (such date, if any, the “First Third Amendment Effective Date”) on which all each of the following conditions precedent have set forth below has been satisfied or waived:
(i) the General satisfied: The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Borrower, the Guarantor Subsidiaries, the Term A-2 Loan Lenders and Consenting Lenders constituting the Required Lenders. Delivery of counterparts of Term Loan Notes in favor of each Term A-2 Loan Lender that has requested a Term Loan Note. The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent: a certificate of an officer of the Borrower certifying that attached thereto is a true, as determined correct and complete copy of resolutions duly adopted by the General board of directors (or other governing body) of each Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment; a fully executed and delivered Funding Notice with respect to the Term A-2 Loans to be borrowed on the Third Amendment Effective Date; and opinions of counsel to the Credit Agreement addressed to the Administrative Agent in its sole discretionand the Lenders with respect to the Credit Agreement and the Term A-2 Loans and this Amendment. No Default or Event of Default shall exist on such Third Amendment Effective Date immediately prior to or after giving effect to (i) this Amendment and (bii) the making of the Term A-2 Loans on such date. The representations and warranties in the Credit Documents will be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) immediately prior to, and immediately after giving effect to, the incurrence of the Term A-2 Loans, on and as of the Third Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties will have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date. The Administrative Agent and the Term A-2 Loan Lenders will have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations including the PATRIOT Act at least three (3) Business Days prior to the Third Amendment Effective Date. The Borrower shall have delivered to the Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it. All fees and amounts due and payable on or prior pursuant to the First Amendment Effective Date for which invoices engagement letter dated as of June 23, 2022 (the “Engagement Letter”), between the Borrower, ▇▇▇▇▇ Fargo Securities, LLC, JPMorgan Chase Bank, N.A. and Truist Securities, Inc. and the Fee Letter (as defined in the Engagement Letter), in each case, will have been presentedpaid (or will be paid substantially concurrently with the funding of the Term A-2 Loans). All costs and expenses (including reasonable, including all reasonable documented, out-of-pocket legal fees and expenses (including reasonable fees, charges of consultants and disbursements of counselother advisors) required and other compensation payable to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall and ▇▇▇▇▇ Fargo Securities, LLC will have received been paid to the extent then due; provided that an invoice of such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as expenses will have been presented no less than two (2) Business Days prior to the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Third Amendment Effective Date (after giving effect to or otherwise approved by the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Borrower in a funds flow or settlement statement for this Amendment).
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment The Amendments contained in Section 3 of this Agreement and the extension of the Revolving Facility Commitments to Extended Maturity Revolving Facility Commitments contained in Section 4 shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been are satisfied or waived:
(ia) The Consent Deadline shall have occurred.
(b) The Borrower shall have paid, to the General account of each Extending Lender (other than a Defaulting Lender) as of the Amendment Effective Date, a fee equal to 25 basis points on the aggregate amount of Revolving Facility Commitments held by such Extending Lender on the Amendment Effective Date that are converted to Extended Maturity Revolving Facility Commitments hereunder.
(c) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent all fees payable thereto on or prior to the First Amendment Effective Date and, to the extent invoiced at least three Business Days prior to the Amendment Effective Date, an amendment fee equal to 1.00% reimbursement or payment of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable and documented out-of-pocket expenses (including reasonable and documented fees, charges and disbursements of counsel▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by any the Loan Party hereunder Parties in connection with this Agreement on or under any other Loan Document;prior to the Amendment Effective Date.
(ivd) The Administrative Agent shall have received, on behalf of itself and the General Revolving Facility Lenders, a written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel to the Loan Parties, (A) dated the date of the Amendment Effective Date, (B) addressed to the Administrative Agent and the Revolving Facility Lenders at the Amendment Effective Date and (C) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Agreement as the Administrative Agent shall reasonably request.
(e) The Revolving Facility Lenders shall have received a solvency certificate substantially in the form of Exhibit C to the Credit Agreement and signed by a Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the transactions contemplated by this Agreement.
(f) The Administrative Agent shall have received such certificates a certificate of resolutions the Secretary or other action, incumbency certificates and/or other certificates of Responsible Officers Assistant Secretary or similar officer of each Loan Party dated the date of the Amendment Effective Date:
(i) either (x) attaching a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the General Administrative Agent may reasonably require evidencing Secretary of State (or other similar official) of the identityjurisdiction of its organization or (y) certifying there have been no changes to the certificate or articles of incorporation, authority certificate of limited partnership, certificate of formation or other equivalent constituent documents of such Loan Party since the Closing Date or the date such Loan Party became a Subsidiary Guarantor, as applicable,
(ii) attaching a “bring-down” certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary State (or similar official),
(iii) either (x) certifying that attached thereto is a true and capacity complete copy of each Responsible Officer thereof authorized the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party as in effect at the Amendment Effective Date and at all times since a date prior to act the date of the resolutions described in clause (iv) below or (y) certifying that there have been no changes to the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Loan Party since the Closing Date or the date such Loan Party became a Subsidiary Guarantor, as applicable,
(iv) certifying that attached thereto is a Responsible Officer true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents executed in connection with this Amendment and the other Loan Documents Agreement to which such Loan Party is a party and that such resolutions have not been modified, rescinded or is to be a party;amended and are in full force and effect at the Amendment Effective Date,
(v) either (x) certifying as to the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date incumbency and has taken such other steps specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party or (y) certifying there have been no changes to the redemption incumbency and specimen signature of each officer executing any Loan Document executed in connection with this Agreement on behalf of such Loan Party since the 2009 Notes Closing Date or the date such Loan Party became a Subsidiary Guarantor, as the General Administrative Agent may reasonably require; applicable, and
(vi) certifying as to the General Administrative Agent shall have received evidence reasonably satisfactory absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to it the knowledge of such person, threatening the existence of such Loan Party. Notwithstanding anything to the contrary herein, in the event that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (does not occur on or before the date that is 10 Business Days after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000date hereof, then this Agreement shall automatically terminate without further action or notice.
Appears in 1 contract
Sources: Incremental Assumption Agreement (Cec Entertainment Inc)
Conditions to Effectiveness of Amendment. This The Bank’s willingness to agree to the amendments set forth in this Amendment shall become effective on is subject to the date (the “First Amendment Effective Date”) on which all prior satisfaction of the following conditions precedent have been satisfied or waivedconditions:
(i) 1. Execution by all parties and delivery to the General Administrative Agent shall have received a counterpart Bank of this Amendment, executed including the attached Consent of Guarantor, the Restated Note, and delivered by an Incumbency Certificate. MEDPACE INTERMEDIATECO, INC., a duly authorized officer Delaware corporation (the “Guarantor”) consents to the provisions of the U.S. Borrowerforegoing Amendment No. 8 to Loan Documents (the “Amendment”) and all prior amendments (if any) and confirms and agrees that: (a) the Guarantor’s obligations under its Guaranty Agreement dated as of September 30, 2019 (the “Guaranty”), relating to the Obligations referenced in the Amendment, shall be unimpaired by the Amendment; (b) the Guarantor has no defenses, set offs, counterclaims, discounts or charges of any kind against the Bank, its officers, directors, employees, agents or attorneys with respect to the Guaranty; and (c) all of the terms, conditions and covenants in the Guaranty remain unaltered and in full force and effect and are hereby ratified and confirmed and apply to the Obligations, as modified by the Amendment. The Guarantor certifies that all representations and warranties made in the Guaranty are true and correct. The Guarantor hereby confirms that any collateral for the Obligations, including liens, security interests, mortgages, and pledges granted by the Guarantor or third parties (if applicable), shall continue unimpaired and in full force and effect, shall cover and secure all of the Guarantor’s existing and future Obligations to the Bank, as modified by this Amendment. By signing below, the Guarantor agrees that this Consent, the Guaranty, the other BorrowersLoan Documents, the Majority Lenders any amendments thereto and Extending Lenders to the extent required by clause any other information, notice, signature card, agreement or authorization related thereto (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing each, a “lender addendum” in a form as provided by Communication”) may, at the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and ConsentBank’s option, be in the form set forth of an electronic record. Any Communication may, at the end Bank’s option, be signed or executed using electronic signatures. For the avoidance of doubt, the authorization under this Amendmentparagraph may include, from each Loan Party signatory thereto;
without limitation, use or acceptance by the Bank of a manually signed paper Communication which has been converted into electronic form (iii) the General Administrative Agent shall have received (asuch as scanned into PDF format) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Datetransmission, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed delivery and/or retention. The Guarantor acknowledges and agrees that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date methods for which invoices have been presenteddelivering Communications, including all reasonable out-of-pocket expenses (including reasonable feesnotices, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Guaranty and the other Loan Documents include electronic transmittal to which such Loan Party is a any electronic address provided by any party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant other party from time to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000time.
Appears in 1 contract
Sources: Amendment to Loan Documents (Medpace Holdings, Inc.)
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waived:(such date, the “Fourteenth Amendment Effective Date”):
(a) (i) the General Borrowers, each other Loan Party and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent,
(ii) each Increasing Revolving Lender shall have executed and delivered to the Administrative Agent a Revolving Lender Consent, and (iii) each Additional Revolving Lender, the Borrower Representative and the Administrative Agent shall have executed and delivered to the Administrative Agent a Revolving Credit Facility Joinder;
a. each of the representations and warranties contained in Section 6 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Fourteenth Amendment Effective Date;
a. at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Fourteenth Amendment Effective Date (including the incurrence of the Incremental Revolving Facility), no Default or Event of Default exists;
a. the Administrative Agent shall have received a counterpart of this Amendmentcertificate, executed in form and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders substance reasonably acceptable to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent, dated the Fourteenth Amendment Effective Date and signed by a Responsible Officer of the Borrower Representative confirming compliance with the conditions set forth in Sections 5(b) and 5(c) hereof;
(ii) b. the General Administrative Agent shall have received an executed Acknowledgment and Consent, a solvency certificate dated as of the Fourteenth Amendment Effective Date in substantially the form of Exhibit H of the Amended Credit Agreement from a Financial Officer of the Parent certifying as to the matters set forth at the end of this Amendment, from each Loan Party signatory theretotherein;
(iii) c. the General Administrative Agent shall have received each Revolving Credit Note (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or extent requested at least three Business Days prior to the First Fourteenth Amendment Effective Date);
d. no later than three (3) days in advance of the Fourteenth Amendment Effective Date, an amendment fee equal to 1.00% the Administrative Agent shall have received all documentation and other information reasonably requested by it in writing at least ten days in advance of such Term Lender’s outstanding Term Loans on the First Fourteenth Amendment Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
e. the Administrative Agent shall have received a certificate dated as of the Fourteenth Amendment Effective Date from a Responsible Officer of the Borrower Representative, certifying compliance with Section 6.13 of the Existing Credit Agreement;
f. the Administrative Agent shall have received, on behalf of itself and the Lenders on the Fourteenth Amendment Effective Date, a customary written opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for Parent, the Borrowers and each other Loan Party (it being agreed that A) dated the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Fourteenth Amendment Effective Date, (B) addressed to the General Administrative Agent, the Amendment Arranger and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent on or prior and the Amendment Arranger covering such matters relating to this Amendment;
g. the time that the General Administrative Agent has Bookrunner and Mandated Lead Arranger shall have received executed counterparts of this Amendment from the Majority Lenders, as determined all fees and expenses agreed to by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts Borrowers or the Borrower Representative that are due and payable on or prior to the First Amendment Effective Date Bookrunner and Mandated Lead Arranger, for which invoices have been presentedpresented to the Parent at least three Business Days prior to the Fourteenth Amendment Effective Date, on or before the Fourteenth Amendment Effective Date (including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges expenses and disbursements of legal counsel) required to ), which amounts may be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentoffset against the proceeds of the Incremental Revolving Loans;
(iv) h. the General Administrative Agent shall have received such certificates of resolutions received:
i. all fees and expenses agreed to by the Borrowers or other actionthe Borrower Representative that are due and payable to the Administrative Agent, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as for which invoices have been presented to the General Administrative Agent may reasonably require evidencing Parent at least three Business Days prior to the identityFourteenth Amendment Effective Date, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and on or before the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Fourteenth Amendment Effective Date (including reasonable and has taken such other steps in connection with documented out-of- pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the redemption proceeds of the 2009 Notes as the General Administrative Agent may reasonably require; andIncremental Revolving Loans;
(vi) the General Administrative Agent i. for distribution to each Incremental Revolving Lender that shall have received evidence reasonably satisfactory delivered (by facsimile or otherwise) an executed signature page to it that a Revolving Lender Consent or a Revolving Credit Facility Joinder (as applicable), and released such signature page, on or prior to 12:00 p.m. (New York time) on 30 September, 2025, a non-refundable special new money fee in an amount equal to (i) 0.60% of the aggregate principal amount of the Tranche A U.S. Incremental Revolving Credit Commitments on to be held by such Incremental Revolving Lender as at the First Fourteenth Amendment Effective Date having committed during syndication Incremental Revolving Loans in an amount less than €10,000,000 and (after giving effect ii) 0.75% of the aggregate principal amount of the Incremental Revolving Credit Commitments to be held by such Incremental Revolving Lender as at the Fourteenth Amendment Effective Date having committed during syndication Incremental Revolving Loans in an amount equal to or exceeding €10,000,000; and
ii. for distribution to each Revolving Lender (including, for the avoidance of doubt, each Incremental Revolving Lender) which has consented to the minimum Financial Covenant Amendment that shall have delivered (by facsimile or otherwise) an executed signature page to a Revolving Lender Consent or a Revolving Credit Commitment Reduction of 33.33Facility Joinder (as applicable), and released such signature page, on or prior to 12:00 p.m. (New York time) on 30 September, 2025, a non- refundable special transaction fee in an amount equal to 0.75% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing aggregate principal amount of the Revolving Credit Agreement) will Commitments to be not less than $700,000,000held by such Revolving Credit Lender as at the Fourteenth Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Orion S.A.)
Conditions to Effectiveness of Amendment. This Amendment shall become be effective on as of the date First Amendment Effective Date subject only to the satisfaction of each of the following conditions:
(a) The Lenders shall have received this Amendment, duly executed by the Credit Parties.
(b) The Bridge Loan Lenders, as applicable, shall have received Bridge Loan Notes and Bridge Loan Warrant Certificates, duly executed by the Borrowers and/or the Company, as applicable;
(c) The Borrowers shall have paid a fee with respect to the amounts advanced under the Bridge Loan equal to US$90,000, in cash, ratably to the Bridge Loan Lenders (the “Bridge Loan Fee”), which fee is fully earned as of the First Amendment Effective Date and non-refundable.
(d) The Bridge Loan Lenders shall have paid the Bridge Loan Consideration to the Borrowers as set forth in Section 2.4 of the Purchase Agreement, less the Bridge Loan Fee (without duplication of Section 3(c) of this Amendment) and the Lenders’ costs and expenses accrued to the First Amendment Effective Date and reimbursable under the Purchase Agreement or other Transaction Agreements.
(e) As of the First Amendment Effective Date”) on which all of , and after giving effect to the following conditions precedent have been satisfied or waived:First Amendment,
(i) the General Administrative Agent no Event of Default shall have received a counterpart of this Amendment, executed occurred and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agentbe continuing;
(ii) the General Administrative Agent shall have received an executed Acknowledgment representations and Consent, warranties of the Credit Parties contained in ARTICLE 4 of the Purchase Agreement and in the form set forth at the end other Transaction Agreements shall be true and correct in all material respects (without duplication of this Amendment, from each Loan Party signatory thereto;
(iiiqualifiers therein as to materiality or Material Adverse Effect) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart as of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans Date as if made on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment except to the General Administrative Agent on or extent expressly made as of a prior date (other than the Restated Closing Date, which shall be read to be the First Amendment Effective Date), in which case such representations and warranties shall be true and correct as of such earlier date), with exceptions to the time that foregoing being disclosed to the General Administrative Agent has received executed counterparts Lenders in the form of this Amendment from updated Schedules to the Majority LendersPurchase Agreement; and
(iii) the Credit Parties shall have performed and complied with all of the terms, as determined covenants, agreements and conditions to be performed or complied with by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable it on or prior to the First Amendment Effective Date for (other than any failure to perform or comply with such terms, covenants, agreements and conditions which invoices have been presentedthe Lender has waived in writing), including all reasonable out-of-pocket expenses (including reasonable feesand, charges and disbursements to the extent that any Schedules hereto are incomplete or inaccurate as of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with Date, the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andCredit Parties shall deliver updated Schedules.
(vif) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on On the First Amendment Effective Date (after giving effect Date, the Company and each other Credit Party shall have executed and delivered, or caused to be executed and delivered, to the minimum Revolving Credit Commitment Reduction Lenders, a certificate signed by the appropriate officers of 33.33% such Person certifying, inter alia, as to the (i) Articles and any simultaneous addition notice of any new U.S. Revolving Lenders pursuant to Section 2.6 articles of the Existing Company, and all constating, organizational or governing documents of each other Credit AgreementParty, (ii) will be not less than $700,000,000resolutions of the board of directors, managers, shareholders or members, as applicable, of the Company and each other Credit Party authorizing and approving such Person’s execution, delivery and performance of their obligations under the Transaction Agreements, (iii) incumbency and signatures of the signing officers of the Company and each other Credit Party, and (iv) certificates of good standing of recent date for the Company and each other Credit Party from the relevant authority in each jurisdiction in which such Person is qualified to do business.
Appears in 1 contract
Sources: Securities Purchase Agreement
Conditions to Effectiveness of Amendment. This Amendment shall become effective on The effectiveness of this Incremental Amendment, including the obligation of the 2018 Incremental Term B Lender to make a 2018 Incremental Term B Loan, is subject to the satisfaction or waiver of the following conditions (the date (of such satisfaction or waiver of such conditions being referred to herein as the “First 2018 Incremental Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:):
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, Incremental Amendment executed and delivered by a duly authorized officer of the U.S. Borrower, each other Loan Party and the 2018 Incremental Term B Lender (which constitutes Required Lenders under the Credit Agreement).
(b) The Administrative Agent shall have received, on behalf of itself and the 2018 Incremental Term B Lender, customary legal opinions, customary officer’s closing certificates, organizational documents, customary evidence of authorization and good standing certificates in jurisdictions of formation or organization, in each case, with respect to the Borrower and the other BorrowersLoan Parties. Subject to clause (l) of this Section 3, all documents and instruments required to create and perfect the Administrative Agent’s security interests in the Collateral shall have been executed and delivered by the Borrower and the Guarantors (or, where applicable, the Majority Lenders Borrower and Extending Lenders the Guarantors shall have authorized the filing of financing statements under the Uniform Commercial Code) and, if applicable, be in proper form for filing.
(c) A certificate of a Responsible Officer of the Borrower certifying that (i) the conditions in clauses (h), (j) and (k)(ii) of this Section 3 have been satisfied and (ii) the 2018 Incremental Term B Loans are being incurred in reliance on Section 2.17(a)(iii) of the Existing Credit Agreement.
(d) To the extent such documentation has not previously been delivered in connection with the funding of the Initial Term B Loans under the Existing Credit Agreement, the Administrative Agent and the 2018 Incremental Term B Lender shall have received at least three (3) business days prior to the 2018 Incremental Amendment Effective Date, all documentation and other information required with respect to the Loan Parties by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” reasonably requested in a form as provided writing by the Administrative Agent;Agent or the 2018 Incremental Term B Lender at least ten (10) business days prior to the 2018 Incremental Amendment Effective Date. To the extent the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), at least three (3) business days prior to the 2018 Incremental Amendment Effective Date, the 2018 Incremental Term B Lender that has requested, in a written notice to the Borrower at least ten (10) business days prior to the 2018 Incremental Amendment Effective Date, a beneficial ownership certification as required by the Beneficial Ownership Regulation in relation to the Borrower shall have received such beneficial ownership certification.
(e) All fees and expenses (in the case of expenses, to the extent invoiced at least three (3) business days prior to the 2018 Incremental Amendment Effective Date (except as otherwise reasonably agreed by the Borrower)), required to be paid on the 2018 Incremental Amendment Effective Date, shall have been paid, or shall be paid substantially concurrently with, the borrowing of the 2018 Incremental Term B Loans.
(f) The Administrative Agent shall have received a Borrowing Request in respect of the 2018 Incremental Term B Loans as required by Section 2.03 of the Existing Credit Agreement.
(g) The Administrative Agent shall have received a certificate from the chief financial officer of the Borrower, in substantially the form of Exhibit G to the Existing Credit Agreement, certifying that the Borrower and its subsidiaries, on a consolidated basis after giving effect to the Transactions, are solvent.
(h) The Acquisition and the other Transactions shall have been, or shall substantially concurrently with the initial funding of the 2018 Incremental Term B Loans be, consummated in all material respects in accordance with the terms of the Acquisition Agreement without any amendments, waivers or consents that are materially adverse to the interests of the 2018 Incremental Term B Lender or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. as the lead arranger and bookrunner (the “Lead Arranger”) for the 2018 Incremental Term B Loans without the prior written consent (not to be unreasonably withheld, delayed or conditioned) of the Lead Arranger (it being understood and agreed that any amendment or waiver of the definition of Company Material Adverse Effect (as defined in the Acquisition Agreement), will be deemed to be materially adverse to the interests of the 2018 Incremental Term B Lender or the Lead Arranger).
(i) Since December 31, 2017, there shall have been no Company Material Adverse Effect (as defined in the Acquisition Agreement).
(j) As of the 2018 Incremental Amendment Effective Date, no Event of Default under clauses (a), (b), (h) or (i) of Section 7.01 of the Existing Credit Agreement is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof.
(k) As of the 2018 Incremental Amendment Effective Date: (i)each of the representations made by Target in the Acquisition Agreement as are material to the interests of the 2018 Incremental Term B Lender shall be true and correct, but only to the extent that the failure to so be true and correct would provide the Borrower the right to terminate its obligations under the Acquisition Agreement, or the right to decline to consummate the Acquisition, as a result of a breach of such representations in the Acquisition Agreement; and
(ii) the General Administrative Agent shall have received an executed Acknowledgment representations and Consent, in warranties of each of the form Borrower and the Guarantors (after giving effect to the Transactions) set forth at in Sections 3.01, 3.02, 3.03(b), (c) and (d), 3.09, 3.14, 3.17, 3.19 and 3.20 of the end of this Amendment, from each Loan Party signatory thereto;Existing Credit Agreement shall be true and correct.
(iiil) The security interest that will be granted in Collateral of any entities that will become Guarantors in connection with the General Administrative Agent Transactions under the Loan Documents shall be created and perfected, to the extent that perfection therein may be perfected by the filing of a UCC financing statement, upon the creation and perfection of such security interest or the delivery of certificates evidencing equity interests; provided that any such certificated equity interests with respect to subsidiaries of the Target will be required to be delivered on the 2018 Incremental Amendment Effective Date only to the extent received from the Target after your use of commercially reasonable efforts to obtain such certificates.
(m) The 2018 Incremental Term B Lender shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of the Borrower and Target for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date2015, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders2016 and 2017 fiscal years, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees unaudited consolidated balance sheet and amounts due related statement of income, stockholders’ equity and payable on or cash flow of the Borrower and the Target for each subsequent fiscal quarter ended at least 45 days prior to the First 2018 Incremental Amendment Effective Date for which invoices Date. The making of the 2018 Incremental Term B Loans by the 2018 Incremental Term B Lender shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and the 2018 Incremental Term B Lender that each of the conditions precedent set forth in this Section 3 shall have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed satisfied in accordance with its respective terms or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received been irrevocably waived by such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Person.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been are satisfied or waivedwaived by the Required Lenders:
(ia) the General The Administrative Agent (or its counsel) shall have received from the Borrower, the Subsidiary Loan Parties and the Lenders constituting the Required Lenders either (i) a counterpart of this Amendment signed on behalf of such party (or a consent to this Amendment in the form of Exhibit A hereto (a “Consent Form”)) or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;.
(iib) the General The Administrative Agent shall have received an executed Acknowledgment and Consentreceived, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or extent invoiced at least one Business Day prior to the First Amendment Effective Date, an amendment fee equal to 1.00% reimbursement or payment of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by any the Loan Party Parties hereunder or under any other Loan Document;Document on or prior to the Amendment Effective Date.
(ivc) (x) The representations and warranties set forth in Section 3.2 hereof shall be true and correct as of the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with (y) the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vior its counsel) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate of a Responsible Officer of the Tranche A U.S. Revolving Credit Commitments on Borrower, dated the First Amendment Effective Date Date, certifying compliance with the foregoing clause (after giving effect x).
(d) On or prior to the minimum Revolving Credit Commitment Reduction of 33.33% and Amendment Effective Date, any simultaneous addition of any new U.S. Revolving Lenders pursuant Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to Section 2.6 of each Lender that so requests at least five Business Days prior to the Existing Credit Agreement) will be not less than $700,000,000Amendment Effective Date, a Beneficial Ownership Regulation Certification in relation to such Loan Party.
Appears in 1 contract
Sources: Revolving Credit Agreement (Nuance Communications, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waivedwhen and only when:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Borrower, each Guarantor and the Lenders, as determined by the General Administrative Agent in its sole discretion) and ;
(b) all other fees the Borrower shall have paid to the Administrative Agent, for the account of each Lender a fee in the amount equal to 0.30% times the positive remainder, if any, of (i) such Lender’s Revolving Loan Commitment Percentage of the Borrowing Base after giving effect to the provisions of Sections 2.1 and amounts 2.2 of this Amendment, minus (ii) such Lender’s Revolving Loan Commitment Percentage of the Borrowing Base immediately prior to giving effect to the provisions of Sections 2.1 and 2.2 of this Amendment (or if a Lender was not party to the Original Agreement prior to the effectiveness of this Amendment, zero), which fee shall be due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentdate hereof;
(ivc) the General representations and warranties of each Credit Party contained in the Financing Documents shall be true, correct and complete in all material respects (or in all respects if such representation or warranty is by its terms already qualified as to materiality) on and as of the Effective Date, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date;
(d) the Administrative Agent shall have received such certificates a certificate of resolutions the secretary, assistant secretary or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized of Borrower certifying as of the Effective Date (i) that there have been no changes to act as a Responsible Officer the Organizational Documents of Borrower since the Closing Date, (ii) the resolutions of Borrower approving this Amendment, and other documents executed in connection with this Amendment and the other Loan Documents related transactions (which certification may, if applicable, be by reference to previously adopted resolutions), and (iii) the signature and incumbency certificates of the officers of Borrower (which such Loan Party is a party or is certification may, if applicable, be by reference to be a partypreviously delivered incumbency certificates);
(ve) the General Administrative Agent shall have received evidence reasonably satisfactory a certificate of the secretary, assistant secretary or other Responsible Officer of each Guarantor certifying as of the Effective Date (i) that there have been no changes to it that the U.S. Borrower has given an irrevocable call notice Organizational Documents of such Guarantor since the Closing Date, (ii) the resolutions of such Guarantor approving this Amendment, and other documents executed in connection with this Amendment and the related transactions (which certification may, if applicable, be by reference to redeem all 2009 Notes outstanding on previously adopted resolutions), and (iii) the First Amendment signature and incumbency certificates of the officers of such Guarantor (which certification may, if applicable, be by reference to previously delivered incumbency certificates);
(f) as of the Effective Date and has taken such other steps in connection with the redemption immediately after, no Default or Event of the 2009 Notes as the General Administrative Agent may reasonably requireDefault shall have occurred and be continuing; and
(vig) the General Administrative Agent shall have received evidence all documents and instruments that Administrative Agent has then reasonably requested, in addition to those described in this Section 3.1 (all such additional documents and instruments shall be reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Administrative Agent in form, substance and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000date).
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (first written above upon the “First Amendment Effective Date”) on which all satisfaction of each of the following conditions precedent have been satisfied or waivedprecedent:
(ia) the General Administrative Each party hereto shall have executed and delivered this Amendment to Agent;
(b) Agent shall have received a counterpart fully executed copy, in form and substance reasonably satisfactory to Agent, of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders conforming amendment to the extent required Revolving Loan Agreement;
(c) Agent shall have received a fully executed copy, in form and substance satisfactory to Agent, of that certain First Amendment to Fee Letter between Agent and Borrower;
(d) Agent shall have received a fully executed copy, in form and substance satisfactory to Agent, of that certain Consent and Amendment No. 1 to Intercreditor Agreement by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by and between Agent and the Administrative Revolving Loan Agent;
(iie) the General Administrative Agent shall have received an executed Acknowledgment and Consent, evidence that ▇▇▇▇▇▇▇ Advisory Group LLC has received from Borrower a refundable retainer in the form set forth at the end amount of this Amendment, from each Loan Party signatory thereto$75,000;
(iiif) Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of resolutions of the General Administrative board of directors (or other equivalent governing body or member) of Borrower authorizing the execution, delivery and performance of this Amendment and the First Amendment to Fee Letter;
(g) All proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be reasonably satisfactory to Agent and its legal counsel;
(h) Agent shall have received (a) for distribution payment of all fees payable to each Term Lender which has delivered an executed counterpart of this Amendment Agent and Lenders pursuant to the General Administrative Agent on or prior to terms of the First Amendment Effective DateFee Letter, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) Agent and its counsel required to be reimbursed or paid by any pursuant to the Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps Agreement in connection with the redemption preparation, execution and delivery of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith that have been invoiced on or before the 2009 Notes as the General Administrative Agent may reasonably requiredate hereof; and
(vii) the General Administrative Agent No Default or Event of Default shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% occurred and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000continuing.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have been satisfied or waived:waived in accordance with the terms hereof and the Credit Agreement (such date, the “Effective Date”):
(i) 4.1 this Amendment shall have been executed and delivered by the General Borrowers, the Administrative Agent, the Required Lenders and the 2015-1 Incremental Term A Loan Lenders;
4.2 the Administrative Agent shall have received a counterpart certificate of this Amendmentthe Parent Borrower dated as of the Effective Date, duly executed and delivered by a duly authorized officer an Authorized Officer of the U.S. Borrower, Parent Borrower (i) (A) certifying and attaching the other Borrowers, resolutions or similar consents adopted by the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent Parent Borrower approving or consenting to this Amendment by instead and the incurrence of the 2015-1 Incremental Term A Loans, (B) certifying that the certificate or articles of incorporation and by-laws of the Parent Borrower either (x) has not been amended since the Closing Date or (y) is attached as an exhibit to such certificate, and (C) certifying as to the incumbency and specimen signature of each officer executing a “lender addendum” in a form as provided by this Amendment and any related documents on behalf of the Administrative Agent;
Parent Borrower and (ii) certifying as to the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form matters set forth at the end of this Amendment, from each Loan Party signatory theretoin Sections 4.5 below;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) 4.3 all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses for which invoices have been presented prior to the Effective Date (including the reasonable fees, charges fees and disbursements expenses of legal counsel) required to be paid or reimbursed by the Borrowers pursuant to Section 10.3 of the Credit Agreement or paid by any Loan Party hereunder or under any other Loan Documentletter agreement in connection with this Amendment shall have been paid or reimbursed;
(iv) 4.4 the General Administrative Agent shall have received such certificates opinions, dated as of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Effective Date and addressed to the Administrative Agent may reasonably require evidencing and all 2015-1 Incremental Term A Loan Lenders, from (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the identityParent Borrower, authority in form and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence substance reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
and (viii) Maryland counsel to the General Administrative Agent shall have received evidence Parent Borrower, in form and substance reasonably satisfactory to it that the aggregate principal amount Administrative Agent;
4.5 the representations and warranties in Section 5 of this Amendment shall be true and correct in all material respects as of the Tranche A U.S. Revolving Effective Date;
4.6 the Parent Borrower shall be in compliance with Section 7.2.4 of the Credit Commitments on the First Amendment Effective Date (Agreement both before and after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 incurrence of the Existing Credit Agreement) will 2015-1 Incremental Term A Loans; and
4.7 the Senior Secured Leverage Ratio shall be not less than $700,000,0003.00 to 1.00 both before and after giving effect to the incurrence of the 2015-1 Incremental Term A Loans (assuming, for the purposes of the calculations under this Section 4.7, that the Revolving Commitments are 50% drawn and that all Permitted Securitization is 50% utilized).
Appears in 1 contract
Sources: Credit Agreement (Hanesbrands Inc.)
Conditions to Effectiveness of Amendment. This Section 1 of this Amendment shall become effective on as of the date (the “First Fourth Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(ia) the General The Administrative Agent (or its counsel) shall have received (i) a counterpart of this Amendment, duly executed and delivered by completed counterpart hereof that bears the signature of the Borrower and each other Loan Party, (ii) a duly authorized officer executed and completed counterpart hereof that bears the signature of the U.S. Borrower, Administrative Agent and (iii) a duly executed and completed counterpart hereof that bears the other Borrowers, signature of each of the Majority Lenders and Extending Lenders to party hereto (comprising the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentRequired Lenders);
(iib) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, Confirmation in the form set forth at the end of this Amendment, Annex I hereto from an authorized officer of each Loan Party signatory theretoParty;
(iiic) the General The Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart reimbursement of this Amendment reasonable and documented out of pocket expenses (to the General Administrative Agent on or extent invoiced no later than three Business Days prior to the First Fourth Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement and (ii) on behalf of itself, its Affiliates and each Lender consenting to which this Amendment, all fees owed to it, its Affiliates and/or such Loan Party is a party Lender on or is prior to be a partythe date hereof;
(vd) the General The Administrative Agent shall have received evidence reasonably satisfactory at least two (2) Business Days prior to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Fourth Amendment Effective Date all documentation and has taken such other steps information about the Loan Parties as shall have been reasonably requested in connection with writing at least five (5) Business Days prior to the redemption of Fourth Amendment Effective Date by the 2009 Notes as the General Administrative Agent may reasonably requirerequired by regulatory authorities under applicable Anti-Money Laundering Laws, including the USA PATRIOT Act and other “know your customer” rules and regulations; and
(vie) the General The Administrative Agent shall have received evidence reasonably the Approved Budget in form and substance satisfactory to it that the aggregate principal amount of Administrative Agent and the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Required Lenders.
Appears in 1 contract
Sources: Credit Agreement (Blue Bird Corp)
Conditions to Effectiveness of Amendment. This The effectiveness of the amendments and consents pursuant to this Amendment shall become effective on be subject to the date (the “First Amendment Effective Date”) on which all satisfaction of each of the following conditions precedent precedent:
(a) Lender shall have received an executed original or executed original counterparts of this Amendment (as the case may be), duly authorized, executed and delivered by the respective party or parties hereto;
(b) Lender shall have received, in form and substance satisfactory to Lender, evidence that the QMP Purchase Agreements and the OMPC-NC Merger Agreements have been satisfied duly authorized, executed and delivered by and to the appropriate parties thereto, that the transactions contemplated under the terms and conditions of the QMP Purchase Agreements have been consummated prior to or waivedcontemporaneously with the execution of this Amendment;
(c) Lender shall have received, in form and substance satisfactory to Lender, all releases, terminations and such other documents as Lender may request to evidence and effectuate the termination by BBT of its financing arrangements with ORC, as assumed by ORC pursuant to the QMP Purchase Agreements, and the termination and release by BBT of any interest in and to any assets and properties of QMP constituting any of the QMP Purchased Assets, and of any interest in the assets and properties of ORC, duly authorized, executed and delivered by BBT, including, but not limited to, (i) UCC-3 Termination Statements for all UCC Financing Statements previously filed by it, as secured party, and QMP, as debtor, and (ii) satisfactions and discharges of any mortgages, deeds or trusts or deeds to secured debt by QMP in favor of it covering any of the Real Property located in Chatham County, North Carolina, in form acceptable for recording in the appropriate governmental office located in Chatham County, North Carolina;
(d) Lender shall have received evidence, in form and substance satisfactory to Lender, that the OMPC-NC Merger will be consummated by the close of business on the date hereof.
(e) Lender shall have received, in form and substance satisfactory to Lender, the Second Amended and Restated ORC Term Note, duly authorized, executed and delivered by ORC;
(f) Lender shall have received, in form and substance satisfactory to Lender, each duly authorized, executed and delivered (i) a Deed of Trust and Security Agreement by ORC in favor of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as trustee, for the benefit of Lender with respect to the Real Property and related assets of ORC acquired from QMP located in Chatham County, North Carolina, (ii) a Mortgage Modification Agreement with respect to the Mortgage and Security Agreement, dated February 2, 1996, by ORC in favor of Lender for filing in Tippecanoe County, Indiana, and (iii) a Mortgage Modification Agreement with respect to the Amended and Restated Mortgage and Security Agreement, dated February 2, 1996, by ORC in favor of Lender for filing in Madison County, New York and Oswego County, New York;
(g) Lender shall have received an environmental Phase I and Phase II site report with respect to ORC's Real Property to be acquired from QMP and located in Chatham County, North Carolina, conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) that the past and present operation, use and condition of such Real Property has been in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(h) Lender shall have received, in form and substance satisfactory to Lender, a valid and effective title insurance policy and/or updating endorsements issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(i) Lender shall have received, in form and substance, satisfactory to Lender, originals of the following, each duly authorized, executed and delivered:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered Supplemental Limited Guarantee by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with respect to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentObligations of ORC;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory theretoReunion Limited Guarantee;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;Reunion Indemnity Agreement; and
(iv) the General Administrative Reunion/ORC Letter; and
(v) a Subordinated Promissory Note, dated of even date herewith, by ORC payable to Reunion in the original principal amount of $2,000,000 evidencing the indebtedness consisting of the Reunion November 1996 Subordinated Loan.
(j) Lender shall have received, in form and substance satisfactory to Lender, (i) a letter agreement from Reunion in favor of Lender acknowledging that each of the Reunion November 1996 Subordinated Loan and the Reunion February 1997 Subordinated Loan (when and if made) shall be subordinated in right of payment to the right of Lender to receive the prior indefeasible payment in full of all of the Obligations pursuant to the Subordination Agreement, dated February 2, 1996, between Lender and Reunion, as acknowledged by Borrowers, duly authorized, executed and delivered by Reunion and Borrowers and (ii) a letter agreement from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in favor of Lender acknowledging that the indebtedness consisting of the Supplemental Credit Support Fee Agreement, dated of even date herewith, between ORC and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be subordinated in right of payment to the right of Lender to receive the prior indefensible payment in full of all of the Obligations pursuant to the Subordination Agreement, dated February 2, 1996, between Lender and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as acknowledged by ORC, duly authorized, executed and delivered by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ORC;
(k) Lender shall have received, in form and substance satisfactory to Lender, (i) a favorable opinion of counsel for ORC addressed to Lender with respect to the transactions contemplated by this Amendment, the QMP Purchase Agreements and the OMPC-NC Merger Agreements, (ii) a favorable opinion of special North Carolina counsel for ORC addressed to Lender with respect to the transactions contemplated by this Amendment, the QMP Purchase Agreements and the OMPC-NC Merger Agreements, and (iii) a favorable opinion of counsel for QMP and ▇▇▇▇ addressed to ORC, upon which Lender is expressly permitted to rely, with respect to the transactions contemplated by the QMP Purchase Agreements;
(l) Lender shall have received, in form and substance satisfactory to Lender, (i) a Collateral Assignment of Acquisition Agreements by ORC in favor of Lender, duly authorized, executed and delivered by ORC providing for the assignment of all of ORC's rights and remedies and claims for damages or other relief under the QMP Purchase Agreements and granting Lender such other rights with respect thereto, as Lender may require, and (ii) the agreement of QMP, ▇▇▇▇ and the Escrow Agent (as defined in the Purchase Agreements) consenting to the Collateral Assignment of Acquisition Agreements by ORC to Lender duly authorized, executed and delivered by QMP, ▇▇▇▇ and the Escrow Agent;
(m) Lender shall have received, in form and substance satisfactory to Lender, evidence that Lender has valid, perfected and first priority security interests in and liens upon the QMP Purchased Assets;
(n) Lender shall have received, in form and substance satisfactory to Lender, updates or amendments to the insurance certificates previously issued by the insurance agent and/or insurance company in favor of Lender certifying to Lender that the QMP Purchased Assets, including the Real Property located in Chatham County, North Carolina, are covered by ORC's existing insurance policies and loss payable and additional insured endorsements in favor of Lender;
(o) Lender shall have received, in form and substance satisfactory to Lender, UCC-3 Termination Statement by Sunbeam with respect to UCC-1 Financing Statements previously filed against QMP and new UCC-1 Financing Statements between ORC, as debtor, and Sunbeam, as secured party, filed with the North Carolina Secretary of State and the Recorder of Deeds of Chatham County, North Carolina;
(p) Lender shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized evidence that ORC has qualified to act do business as a Responsible Officer foreign corporation in the State of North Carolina;
(q) Lender shall have received evidence that QMP has filed an amendment to its Certificate of Incorporation changing its name to a name bearing no resemblance to Quality Molded Products, Inc.;
(r) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests and liens upon the Collateral or to affect the provisions or purposes of this Amendment and the other Financing Agreements;
(s) no material adverse change shall have occurred in the QMP Purchased Assets or the business of QMP conducted with the QMP Purchased Assets by QMP since the date of Lender's latest field examination of the QMP Purchased Assets.
(t) all requisite corporate action and proceedings in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is documents and instruments to be a partydelivered hereunder shall be in form and substance satisfactory to Lender, and Lender shall have received all information and copies of all documents, including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by Lender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(u) no Event of Default shall exist or have occurred and no event or condition shall have occurred or exist which with notice or passage of time or both would constitute an Event of Default;
(v) the General Administrative Agent Lender shall have received evidence reasonably received, in form and substance satisfactory to it that Lender, an agreement from ▇▇▇▇▇ Limited and Gain Technologies providing for, among other things, the U.S. Borrower has given an irrevocable call notice rights of ORC and Lender with respect to redeem all 2009 Notes outstanding on the First Amendment Effective Date intellectual property licensed to ORC by Gain Technologies and/or ▇▇▇▇▇ Limited and has taken Collateral consisting of or affected by such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requirerights; and
(viw) the General Administrative Agent Lender shall have received evidence reasonably received, in form and substance satisfactory to it that the aggregate principal amount Lender, evidence of the Tranche A U.S. Revolving Credit Commitments payment by ORC of the QMP Purchase Price (subject to adjustment as provided in the QMP Purchase Agreements) in consideration of the purchase by ORC of the QMP Purchase Assets pursuant to the QMP Purchase Agreements and the payment by ORC of an amount not to exceed $240,000 in payment of the broker's fee payable to First Commercial Group upon closing of the acquisition contemplated by the QMP Purchase Agreements, in each case as in effect on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000date hereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Reunion Industries Inc)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(a) The Administrative Agent shall have received (i) from each Lender with a Tranche B-1 Exchange Commitment and from each Post-Closing Option Lender, (ii) from the General Administrative Agent and (iii) from the Borrower and each Subsidiary Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (or a Consent) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment (or a Consent).
(b) The Administrative Agent shall have received from each Additional Tranche B-1 Lender an executed counterpart to the applicable Joinder Agreement. The aggregate amount of Additional Tranche B-1 Commitments and Tranche B-1 Exchange Commitments shall equal the aggregate principal amount of Tranche B Loans outstanding immediately prior to the effectiveness of this Amendment.
(c) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Lender immediately prior to the effectiveness of this Amendment, a payment equal to 1% of the aggregate principal amount of Loans outstanding immediately prior to the Amendment No. 1 Effective Date, whether or not such Lender becomes a Tranche B-1 Lender.
(d) The Borrower shall have paid to the Administrative Agent, for the ratable account of each Lender immediately prior to the effectiveness of this Amendment, simultaneously with the making of Tranche B-1 Loans under the Term Loan Agreement, all accrued and unpaid interest on their Tranche B Loans to, but not including, the Amendment No. 1 Effective Date.
(e) The Administrative Agent shall have received a counterpart of this Amendment, executed customary written opinion (addressed to the Administrative Agent and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders dated the Amendment No. 1 Effective Date) of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Credit Parties, in form and substance reasonably satisfactory to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;. The Borrower hereby requests such counsel to deliver such opinions.
(f) The Borrower shall have paid to (i) the Co-Lead Arrangers the fees in the amounts previously agreed in writing to be received on the Amendment No. 1 Effective Date and (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable documented out-of-pocket costs and expenses of the Administrative Agent (including including, without limitation the reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Administrative Agent) required payable pursuant to be reimbursed or paid by any Section 9.05 of the Term Loan Party hereunder or under any other Loan Document;Agreement for which invoices have been presented at least three Business Days prior to the Amendment No. 1 Effective Date.
(ivg) At the General time of and immediately after giving effect to this Amendment no Default or Event of Default shall have occurred and be continuing.
(h) The Administrative Agent shall have received (1) a copy of the certificate or articles of incorporation, certificate of limited partnership or certificate of formation, including all amendments thereto, of each Credit Party, in each case, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, and a certificate as to the good standing (to the extent such certificates concept or a similar concept exists under the laws of such jurisdiction) of each such Credit Party as of a recent date from such Secretary of State (or other similar official); (2) a certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party dated the Amendment No. 1 Effective Date and certifying: (i) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent governing documents) of such Credit Party as in effect on the Amendment No. 1 Effective Date and at all times since a date prior to the date of the resolutions described in clause (ii) below, (ii) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or other actionmanaging general partner, incumbency certificates and/or other certificates managing member or equivalent) of Responsible Officers such Credit Party authorizing the execution, delivery and performance of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party Person is a party and the borrowings hereunder, and that such resolutions have not been modified, rescinded or is amended and are in full force and effect on the Amendment No. 1 Effective Date, (iii) that the certificate or articles of incorporation, certificate of limited partnership, articles of incorporation or certificate of formation of such Credit Party has not been amended since the date of the last amendment thereto disclosed pursuant to be a party;
clause (1) above, (iv) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Credit Party, and (v) as to the General absence of any pending proceeding for the dissolution or liquidation of such Credit Party; and (3) a certificate of a director or an officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (2) above; provided that the certificate of the Secretary or Assistant Secretary or similar officer of each Credit Party may, in lieu of attaching the documents required pursuant clauses (1) and (2)(i) above, certify that such documents have not been amended, modified or otherwise changed since the Funding Date.
(i) To the extent required and requested in writing by any Additional Tranche B-1 Lender at least three Business Days prior to the Amendment No. 1 Effective Date, the Administrative Agent shall have received evidence reasonably satisfactory to it that all documentation and other information about the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on Credit Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andUSA PATRIOT Act.
(vij) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate signed by a Authorized Officer of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect Borrower certifying as to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 accuracy of the Existing Credit Agreementrepresentations set forth in paragraphs (b) will be not less than $700,000,000and (c) of Section 2 hereof.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on upon receipt by:
(a) the date Lenders, the Administrative Agent and the Borrower of a counterpart signature of the other to this Amendment duly executed and delivered by each of the Lenders, the Administrative Agent and the Borrower;
(b) OrbiMed Royalty & Credit Opportunities IV, LP and OrbiMed Royalty & Credit Opportunities IV Offshore, LP (together, the “First Amendment Effective DateShareholders”) on which all of the following conditions precedent have been satisfied or waivedof:
(i) an aggregate of 400,000 shares (the General Administrative Agent shall have received a counterpart “Shares”) of this Amendment, executed and delivered by a duly authorized officer common stock of the U.S. Borrower, $0.0001 par value per share (the other Borrowers“Common Stock”), the Majority Lenders and Extending Lenders issued pursuant to the extent required by clause Borrower’s registration statement (viFile No. 333-271276) below; provided that any Lender may signify its consent to this Amendment by instead executing a (the “lender addendum” in a form Registration Statement”) under the Securities Act of 1933, as provided by amended (the Administrative Agent“Securities Act”);
(ii) a prospectus supplement, complying with Rule 424(b) under the General Administrative Agent shall have received an executed Acknowledgment Securities Act, relating to the offer and Consentsale of the Shares to the Shareholders and filed with the SEC prior to, in on, or within two Business Days of the form set forth at the end date of this Amendment, from each Loan Party signatory theretoAmendment (the “Prospectus Supplement”);
(iii) a copy of the General Administrative Agent shall have received (a) for distribution executed, irrevocable instructions from the Borrower to each Term Lender which has delivered an executed counterpart of this Amendment Computershare Trust Company, N.A. to deliver the Shares to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentShareholders;
(iv) a copy of a good standing certificate of the General Administrative Agent shall have received such certificates Borrower, dated a date reasonably close to the date of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a partyAmendment;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption a certificate, dated as of the 2009 Notes date of this Amendment, duly executed and delivered by the Secretary of the Borrower, as to (A) resolutions of the General Administrative Agent may reasonably requireboard of directors of the Borrower authorizing the execution, delivery and performance of this Amendment and the transactions contemplated hereby; and(B) the incumbency and signatures of the Borrower’s officers authorized to act with respect to this Amendment and (C) the full force and validity of the ▇▇▇▇▇▇▇▇’s certificate of incorporation and bylaws and copies thereof;
(vi) an opinion, dated the General Administrative Agent shall have received evidence date of this Amendment and addressed to the Shareholders, from K&L Gates LLP, counsel to the Borrower, in form and substance reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Shareholders.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all is subject to satisfaction of the following conditions precedent have been satisfied or waivedprecedent:
(ia) the General Administrative Agent shall have received a counterpart copy of this Amendment (including the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party and Required Lenders;
(b) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iic) the General Administrative On a date following February 12, 2016, Borrower shall have made (and Agent shall have received in immediately available funds) a voluntary prepayment of the Term Loans in an executed Acknowledgment amount equal to $22,500,000, which $22,500,000 voluntary prepayment of the Term Loans shall (i) be applied pro rata to the then outstanding principal amount of the Term A Loans and ConsentTerm B Loans, and (ii) as to the amounts applied to the Term A Loans and Term B Loans, be applied to the scheduled installments thereof in the form set forth at the end inverse order of this Amendment, from each Loan Party signatory theretomaturity;
(iiid) the General Administrative Agent shall have received the Amendment Fee (aas defined below) for distribution the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to each Term Lender which the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(e) Agent shall have received evidence satisfactory to Agent that the Cash Reserve Account has delivered an been established by Borrower and has been funded with $7,500,000 in immediately available funds, and Borrower, Agent and ▇▇▇▇▇ Fargo Bank, National Association shall (unless Agent shall agree in writing in its sole discretion in a post-closing letter executed counterpart between Borrower and Agent prior to the effectiveness of this Amendment that such requirement shall be satisfied by Borrower on a post-closing basis on terms acceptable to the General Administrative Agent on or prior Agent, which would include that failure to the First Amendment Effective Date, an amendment fee equal to 1.00% of obtain such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to deposit account control agreement within the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, period agreed therein (as determined such period may be extended by the General Administrative Agent in its sole discretion) would constitute an Event of Default) that such deposit account control agreement may be obtained following the effectiveness of this Amendment) have entered into a deposit account control agreement in form and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably substance satisfactory to it that Agent granting Agent sole dominion and control over the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Cash Reserve Account.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(ia) the General The Administrative Agent shall have received (i) a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of the U.S. BorrowerBorrowers and First Amendment Lenders, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
of the Required Lenders who is not also a First Amendment Lender, the Parent, International and the US Borrower and (iii) for the General account of each Lender that has requested a Note pursuant to Section 4.04(e) of the Credit Agreement, a Note with respect to its Tranche A Term Loan made on the First Amendment Effective Date conforming to the requirements hereof and executed by a duly authorized officer of the US Borrower.
(b) The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment opinions, addressed to the General Administrative Agent on or prior and each of the First Amendment Lenders and dated the First Amendment Effective Date from (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, New York counsel to the US Borrower and (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Company, each in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Agent shall have received a certificate of the US Borrower, dated the First Amendment Effective Date, an amendment fee equal as to 1.00% (i) the adoption of resolutions of the Board of Directors of the US Borrower authorizing (A) the execution, delivery and performance of this Amendment and (B) the borrowing contemplated hereunder, (ii) the incumbency and true signature of the officers of the US Borrower executing this Amendment and any Notes issued hereunder and (iii) the certificate of incorporation and by-laws of the US Borrower, which certificate shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel and executed by the secretary or any assistant secretary or a legal representative of such Term Lender’s outstanding Term Loans on US Borrower.
(d) The Administrative Agent shall have received a certificate, dated the First Amendment Effective Date and signed by a Responsible Officer of the US Borrower, confirming compliance with the conditions set forth in paragraphs (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersa), as determined by the General Administrative Agent in its sole discretion(b) and (bc) of Section 6.02 of the Credit Agreement.
(e) The Administrative Agent, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and the Lenders shall have received all other fees and other amounts earned, due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedDate, including including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;the US Borrower hereunder.
(ivf) the General The Administrative Agent shall have received such certificates of resolutions or other actiona Tranche A Borrowing Request from the US Borrower, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as requesting a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is Tranche A Term Borrowing to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding made on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Date.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all of the following conditions precedent are satisfied (the “Amendment No. 2 Effective Date”):
(a) The Administrative Agent shall have received (i) from each Existing Initial Term Loan Lender with a Refinancing Term B-1 Loan Commitment, from each Additional Term B-1 Lender having Refinancing Term B-1 Loan Commitments and from each Incremental Term B-1 Lender having Incremental Term B-1 Loan Commitments, (ii) from the Administrative Agent, (iii) from the Required Lenders, (iv) from each Revolving Credit Lender and each Issuing Lender and (v) from the Borrower and each Guarantor, either (x) a counterpart or Consent to this Amendment signed on behalf of such party or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart or Consent to this Amendment;
(b) The Borrower shall have paid to all Refinancing Term B-1 Lenders on the Amendment No. 2 Effective Date, simultaneously with the making of the Refinancing Term B-1 Loans under the Credit Agreement, all accrued and unpaid interest on the Existing Initial Term Loans up to, but not including, the Amendment No. 2 Effective Date;
(c) The Administrative Agent shall have received (i) the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, (ii) the executed legal opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇ LLP, as Delaware counsel to the Loan Parties, (iii) the executed legal opinion of Hill ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, P.A., as Florida counsel to the Loan Parties and (iv) the executed legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PLLC, as California counsel to the Loan Parties. The Borrower, the other Loan Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinion;
(d) The Borrower shall have (i) paid to the Amendment No. 2 Arrangers all fees in the amounts previously agreed in writing between the Amendment No. 2 Arrangers and the Borrower to be received on the Amendment No. 2 Effective Date and (ii) reimbursed the Administrative Agent for all reasonable costs and expenses (limited, in the case of legal fees, costs and expenses, to the reasonable fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Amendment No. 2 Arrangers and the Administrative Agent) of the Administrative Agent for which invoices have been satisfied presented at least three (3) Business Days prior to the Amendment No. 2 Effective Date;
(e) At the time of and immediately after giving effect to the Amendment, no Event of Default shall have occurred and be continuing;
(f) To the extent reasonably requested by the Administrative Agent, the Administrative Agent (or waivedits counsel) shall have received:
(i) (A) a certificate of each Loan Party, dated the General Amendment No. 2 Effective Date, executed by two Authorized Officers (only one of which may be the Secretary or Assistant Secretary) of such Loan Party, substantially in the form of Exhibit E to the Credit Agreement (or in such other form as the Administrative Agent may agree in its reasonable discretion), and attaching the documents referred to in clause (iii) below or (B) a certificate of the Borrower on behalf of each Loan Party, dated as of the Amendment No. 2 Effective Date and executed by an Authorized Officer of the Borrower, certifying that, except as otherwise indicated therein, there have been no amendments, supplements or modifications since the Restatement Agreement Effective Date to such documents delivered on the Restatement Agreement Effective Date;
(ii) a certificate of good standing (to the extent such concept exists) from the applicable secretary of state or other relevant Governmental Authority of the jurisdiction of organization of each Loan Party; and
(iii) a copy of the resolutions of the Board of Directors or other governing body, as applicable, of each Loan Party (or a duly authorized committee thereof) authorizing (a) the execution, delivery and performance of this Amendment (and any agreements relating thereto) to which it is a party and (b) in the case of the Borrower, the borrowing of the Term B-1 Loans contemplated hereunder;
(g) The Administrative Agent shall have received at least three days prior to the Amendment No. 2 Effective Date, all documentation and other information about the Borrower and the other Guarantors that shall have been reasonably requested in writing at least 10 Business Days prior to the Amendment No. 2 Effective Date by the Administrative Agent and that the Administrative Agent reasonably determines is required by all applicable regulatory authorities under applicable “know your customer,” anti-money laundering rules and regulations, including without limitation the PATRIOT Act, including, if the Borrower qualifies as a “legal entity customer” under the requirements of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower;
(h) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized certificate from the chief financial officer of the U.S. Borrower, Borrower substantially in the other Borrowers, the Majority Lenders and Extending Lenders form of Exhibit J to the extent required by clause Credit Agreement;
(vii) below; The representations and warranties made in Section 2 of this Amendment shall be true and correct in all material respects (provided that any Lender may signify its consent to this Amendment such representations and warranties which are qualified by instead executing a “lender addendum” materiality, Material Adverse Effect or similar language shall be true and correct in a form as provided by the Administrative Agentall respects);
(iij) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, in a Notice of Borrowing with respect to the form set forth at the end of this Amendment, from each Loan Party signatory thereto;Term B-1 Loans; and
(iiik) the General The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered a certificate of an executed counterpart Authorized Officer of this Amendment the Borrower to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed effect that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent conditions set forth in its sole discretionclauses (e) and (bi) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices of this Section 4 shall have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000satisfied.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on upon the earliest date (the “First Amendment Effective Date”) on as of which all of the following conditions precedent have been satisfied occurred (such date, which occurred on May 28, 2009, the “Second Amendment Effective Date”):
(a) the Administrative Agent (or waived:
its counsel) shall have received counterparts of this Amendment executed by Holdings, the Borrower, the Canadian Borrower, the Subsidiary Guarantors, Lenders collectively constituting Required Lenders, including in any event and without limitation, each of the Continuing Revolving Credit Lenders and each of the Additional Revolving Credit Lenders, (b) the Administrative Agent shall have received (i) for the General account of each Term Loan Lender that transmits its executed counterpart of this Amendment, indicating its consent hereto, to the Administrative Agent on or prior to 5:00 PM (New York City time) on May 26, 2009, an amendment fee in an amount equal to 0.10% of the aggregate outstanding principal amount of the Term Loans held by such Lender as of the Second Amendment Effective Date and (ii) for the account of each Continuing Revolving Credit Lender and Additional Revolving Credit Lender that transmits its executed counterpart of this Amendment, indicating its consent hereto, to the Administrative Agent on or prior to 5:00 PM (New York City time) on May 26, 2009, an extension fee in an amount equal to 1.75% of the aggregate principal amount of the Revolving Credit Commitments held by such Lender as of the Second Amendment Effective Date as set forth on Schedule 1 hereto; (c) the Administrative Agent shall have received a counterpart of this Amendmentcertificate from each Credit Party, executed together with any appropriate insertions and delivered by a duly authorized officer of the U.S. Borrowerattachments thereto, the other Borrowers, the Majority Lenders in form and Extending Lenders substance substantially consistent (to the extent required applicable) with that delivered by clause (vi) below; provided that any Lender may signify its consent such Credit Party in connection with the First Amendment or otherwise reasonably acceptable to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
; (iid) the General Administrative Agent shall have received an the executed Acknowledgment and Consentlegal opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Borrower, substantially in the form set forth at of Exhibit A-1 hereto; and (e) all reasonable costs and expenses of the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to and the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) Lenders required to be paid or reimbursed by the Borrower or paid by any Loan Party hereunder Canadian Borrower pursuant to Section 13.5 of the Credit Agreement or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and for which the other Loan Documents to which such Loan Party is a party Borrower or is to be a party;
(v) Canadian Borrower has received an invoice on or before the General Administrative Agent date hereof shall have received evidence reasonably satisfactory to it that been paid (including the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date reasonable fees, expenses and has taken such other steps in connection with the redemption disbursements of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect legal counsel to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Administrative Agent).
Appears in 1 contract
Sources: Credit Agreement (Visant Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waivedare satisfied:
(ia) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by the General Borrower, each Subsidiary Guarantor, the Issuing Bank and each Lender.
(b) The Administrative Agent shall have received reimbursement for all of its reasonable out-of-pocket costs and expenses in accordance with Section 2.4 hereto.
(c) The Administrative Agent shall have received, for its account and on account of each Lender, all fees in connection with this Amendment in accordance with any fee letter or commitment letter, between the Borrower and ING or the Borrower and any Lender.
(d) The Borrower shall have paid to the Administrative Agent and the Lenders all accrued but unpaid interest as of the date hereof, calculated at the rate set forth in the Credit Agreement (for clarity, without giving effect to the Amendment).
(e) The Administrative Agent shall have received a counterpart favorable written opinion (addressed to the Administrative Agent and the Lenders and dated as of the date hereof) of ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Obligors, in form and substance reasonably acceptable to the Administrative Agent and covering this Amendment and any other matter as the Administrative Agent may reasonably request (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(f) The Administrative Agent shall have received: (i) a certificate, from the secretary of each Obligor, that there has been no change to the organizational documents of each Obligor delivered as of February 22, 2011, (ii) signature and incumbency certificates of the officers of such Person executing this Amendment, (iii) resolutions of the board of directors or similar governing body of each Obligor approving and authorizing the execution, delivery and performance of this Amendment, executed (iv) a good standing certificate from the applicable Governmental Authority of each Obligor’s jurisdiction of incorporation, organization or formation and delivered by in each jurisdiction in which it is qualified as a duly authorized officer foreign corporation or other entity to do business, each dated a recent date prior to the date hereof, and (v) such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the U.S. BorrowerObligors, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart authorization of this Amendment and any other legal matters relating to the General Obligors, all in form and substance satisfactory to the Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in and its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when the date (the “First Amendment Effective Date”) on which all of the following conditions precedent Lender shall have been satisfied or waived:
received (i) counterparts of this Amendment duly executed by each of the General Administrative Agent shall have received a counterpart Loan Parties; (ii) the Amended and Restated Revolver Note, dated as of the date of this Amendment, in substantially the form attached hereto as Exhibit A, executed by the Borrower; (iii) the Guarantees, in substantially the form attached hereto as Exhibit B, and the Security Agreement, in substantially the form attached hereto as Exhibit C, each executed and delivered by the Guarantors that have not executed and delivered to the Lender a Guarantee and the Security Agreement, each dated as of June 30, 2002; (iv) a certified copy of the resolutions of the Board of Directors of the Borrower and each of the Guarantors, in substantially the form attached hereto as Exhibit D, evidencing approval of this Amendment and the other documents and matters contemplated hereby, and all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and such other documents, including, but not limited to, a certificate of "good standing" (or its equivalent), certified copies of the articles of incorporation and true and correct copies of the bylaws; (v) a favorable opinion of counsel for the Borrower, in substantially the form attached hereto as Exhibit E, as to the due execution and delivery by the Borrower and each of the Guarantors of this Amendment and the other documents contemplated hereby and as to such other matters as the Lender may reasonably request; (vi) a signed copy of a certificate of an officer of the Borrower and each of the Guarantors, in substantially the form attached hereto as Exhibit F, who shall certify the names of the officers of the Borrower and the respective Guarantors authorized to sign this Amendment and the other documents or certificates to be delivered pursuant to this Amendment by the Borrower, each of the Guarantors, or any of its respective officers, together with the true signatures of such officers (Lender may conclusively rely on such certificate until it shall receive a further certificate of the Secretary or an Assistant Secretary of the Borrower or the respective Guarantor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate); (vii) a certified copy of the written approval and consent of the holders, if any, of any obligations of the Borrower which must consent to this Amendment and the Borrowings under the Agreement and the other Loan Documents, as amended hereby; (viii) Amendment No. 1 to Subordination Agreements, in substantially the form attached hereto as Exhibit G, to be signed by each Affiliate that is a holder of debt of the Borrower other than the Lender, if any, or unless waived by the Lender; (ix) Subordination Agreements, in substantially the form attached hereto as Exhibit H, each executed and delivered by the Guarantors that did not execute and deliver to the Lender a Subordination Agreement, dated as of June 30, 2002; (x) a certificate, in substantially the form attached hereto as Exhibit I, signed by the President, Vice President or by any other duly authorized officer of the U.S. Borrower, solely in such corporate capacity, stating that, based on an examination which in the other Borrowersopinion of the signer is sufficient to enable him to make an informed statement, to the Majority Lenders best of his knowledge:
(a) The representations and Extending Lenders warranties contained in Section 4.01 of the Agreement are correct on and as of the date of this Amendment as though made on and as of such date except to the extent required by clause (vi) below; provided that any Lender may signify its consent such representations and warranties specifically relate to this Amendment by instead executing a “lender addendum” in a form as provided an earlier date or are affected by the Administrative Agent;transaction contemplated under the Agreement as amended hereby; and
(iib) the General Administrative Agent shall have received an executed Acknowledgment No event has occurred and Consent, in the form set forth at the end of is continuing or would result from this Amendment, from each Loan Party signatory thereto;which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both; and
(iiixi) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined payment by the General Administrative Agent in its sole discretion) and (b) all other Borrower of the fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedcosts, including all reasonable out-of-pocket expenses (including reasonable feesattorneys' fees and expenses, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and the other Loan Documents to documents and matters contemplated hereby, and all fees and costs still outstanding which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps were incurred in connection with the redemption of Agreement and the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000other Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (PBSJ Corp /Fl/)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when the date (the “First Amendment Effective Date”) on which all of the following conditions precedent Lender shall have been satisfied or waived:
received (i) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment duly executed by each of the Borrowers and Guarantors; (ii) the Second Amended and Restated Revolver Note, dated as of the date of this Amendment executed by the Borrower; (iii) the Reaffirmation of Guarantees and Reaffirmation of Security Agreements, in the form attached hereto, each executed and delivered by the Guarantors; (iv) a duly authorized certified copy of the resolutions of the Board of Directors of the Borrower and each of the Guarantors, evidencing approval of this Amendment and the other documents and matters contemplated hereby, and all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and such other documents, including, but not limited to, a certificate of “good standing” (or its equivalent), certified copies of the articles of incorporation and true and correct copies of the bylaws; (v) a favorable opinion of counsel for the Borrower, in form and substance acceptable to Lender, as to the due execution and delivery by the Borrower and each of the Guarantors of this Amendment and the other documents contemplated hereby and as to such other matters as the Lender may reasonably request; (vi) a signed copy of a certificate of an officer of the U.S. Borrower and each of the Guarantors, in the form and substance acceptable to Lender, who shall certify the names of the officers of the Borrower and the respective Guarantors authorized to sign this Amendment and the other documents or certificates to be delivered pursuant to this Amendment by the Borrower, each of the other BorrowersGuarantors, or any of its respective officers, together with the Majority Lenders and Extending Lenders to the extent required by clause true signatures of such officers (vi) below; provided that any Lender may signify its conclusively rely on such certificate until it shall receive a further certificate of the Secretary or an Assistant Secretary of the Borrower or the respective Guarantor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate); (vii) a certified copy of the written approval and consent of the holders, if any, of any obligations of the Borrower which must consent to this Amendment and the Borrowings under the Agreement and the other Loan Documents, as amended hereby; (viii) Amendment No. 2 to Subordination Agreements, to be signed by instead executing each Affiliate that is a “lender addendum” in a form as provided holder of debt of the Borrower other than the Lender, if any, or unless waived by the Administrative Agent;
Lender; and (iiix) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined payment by the General Administrative Agent in its sole discretion) and (b) all other Borrower of the fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedcosts, including all reasonable out-of-pocket attorney’s fees and expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date documents and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000matters contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (PBSJ Corp /Fl/)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:waived (the “Effective Date”):
(ia) the General The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each of (i) the U.S. Borrower, the other Borrowers, the Majority Lenders Borrowers and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;Required Lenders.
(iiib) the General The Administrative Agent shall have received (ai) payment, for distribution to each Term Lender which that has signed and delivered an executed counterpart of this Amendment to the General Administrative Agent by no later than 3:00 p.m., New York City time, on or prior to the First Amendment Effective DateThursday, September 3, 2009, of an amendment fee equal to 1.000.20% of the Commitment of such Term Lender’s outstanding Term Loans on Lender then in effect as of the First Amendment Effective Date date hereof and (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart ii) payment of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lendersall fees, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date well as expenses for which invoices have been presentedpresented on or before the date hereof, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) which are required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment.
(c) The conditions precedent to the amendment dated the date hereof to the Borrowers’ $1.2 Billion Competitive Advance and Revolving Credit Facility Agreement (the “1.2 Billion Credit Agreement”), dated as of December 19, 2006, among Weyerhaeuser, WRECO, JPMorgan Chase Bank and Citibank, as initial fronting banks, JPMorgan Chase Bank and Citibank, as swing line banks, JPMorgan Chase Bank, as administrative agent, Citibank, as syndication agent, Bank of America, N.A., Deutsche Bank Securities Inc. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as documentation agents, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank, as co-documentation agent, and the lenders named therein, shall have been satisfied (other than the condition precedent that the conditions precedent to this Amendment shall have been satisfied). Once effective, such amendment will (i) reduce the facility size of the $1.2 Billion Credit Agreement to $400,000,000, (ii) remove WRECO as a borrower under the $1.2 Billion Credit Agreement, (iii) modify the net worth covenant contained in the $1.2 Billion Credit Agreement in the same manner as set forth in this Amendment and (iv) amend the other Loan Documents to which such Loan Party is a party or is to be a party;facility fees and applicable margin under the $1.2 Billion Credit Agreement in the same manner as set forth in this Amendment.
(vd) No greater than $200,000,000 in Loans shall be outstanding to WRECO as a Borrower under the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Weyerhaeuser Co)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all Date upon satisfaction of the following conditions precedent have been satisfied or waivedconditions:
(ia) The Administrative Agent, the General Administrative Agent Loan Administrator, the Majority Lenders signatory hereto and the Incremental Lenders shall have received a counterpart counterparts of this AmendmentAmendment executed by each other, executed and delivered by a duly authorized officer of the U.S. Borrower, the other BorrowersGuarantors, the Administrative Agent, the Loan Administrator, the Majority Lenders and Extending the Incremental Lenders.
(b) The Administrative Agent, the Loan Administrator, the Majority Lenders and the Incremental Lenders shall have received a Notice of Borrowing (with necessary conforming changes) from the Borrower executed by Responsible Officer of the Borrower and in compliance with the requirements of Sections 2.03 and 2.06 of the Credit Agreement as amended hereby.
(c) The Incremental Lenders shall be satisfied that there shall not occur as a result of the funding of the Incremental Loans on the Funding Date, a default (or any event which with the giving of notice or lapse of time or both would be a default) under any of the Borrower’s or Guarantors’ debt instruments and other material agreements (other than as contemplated by the Senior Notes Forbearance Agreement or the Second Lien Forbearance Agreement). Such determination by the Incremental Lenders shall be binding on the Administrative Agent and the Loan Administrator without further inquiry.
(d) All necessary governmental and third party consents and approvals necessary in connection with the Incremental Loans shall have been obtained and shall remain in effect; and no law or regulation shall be applicable that restrains, prevents or imposes adverse conditions upon the Transactions.
(e) The Administrative Agent for the benefit of the Lenders (including the Incremental Lenders) shall have a valid and perfected first priority lien on and security interest in any Collateral granted under the Credit Agreement as amended hereby and the Loan Documents.
(f) The Administrative Agent, the Loan Administrator, the Majority Lenders signatory hereto and the Incremental Lenders shall have received the Borrower’s updated 6-week budget (the “Updated Budget”) giving effect to the incurrence of the Incremental Loans on the Funding Date, which will govern the use of the proceeds of the Incremental Loans in accordance with Section 9.01 of the Credit Agreement and which Updated Budget shall be in form and substance satisfactory to the Incremental Lenders.
(g) After giving effect to this Amendment and the funding of the Incremental Loans, no Default or Event of Default shall exist under the Credit Agreement as amended hereby or under any Loan Document as of the Effective Date.
(h) The representations and warranties contained in the Credit Agreement as amended hereby and the Loan Documents shall be true and correct on and as of the Effective Date in all material respects as though made as of the Effective Date (except to the extent required by clause (vi) belowany such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties shall continue to be true and correct in all material respects as of such specified earlier date); provided that any Lender may signify its consent representation or warranty that is qualified as to this Amendment by instead executing a “lender addendummateriality”, “Material Adverse Effect” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent or similar language shall have received an executed Acknowledgment be true and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date correct (after giving effect to any qualification therein) in all respects on such respective dates, immediately prior to, and after giving effect to, the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 funding of the Existing Credit AgreementIncremental Loans being made on the Funding Date.
(i) will be The Administrative Agent, the Loan Administrator, the Majority Lenders and the Incremental Lenders shall have received, in form and substance reasonably satisfactory to the Incremental Lenders, a legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as counsel to the Loan Parties.
(j) If the Loan Administrator has not less than $700,000,000received written notice from the Borrower, the Majority Lenders, or any Incremental Lender that any of the foregoing conditions in this Section 6 has not been satisfied prior to the Funding Date, it may assume without further inquiry that such condition has been satisfied.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all each of the following conditions precedent have has been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart counterparts of this AmendmentAmendment that, executed and delivered by a duly authorized officer when taken together, bear the signatures of the U.S. Borrower, Credit Parties and all the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentLenders;
(iib) the General Administrative Agent shall have received an executed Acknowledgment payment of any and Consent, all fees owing in the form set forth at the end of connection with this Amendment, from including an amendment fee payable to each Loan Party signatory theretoLender in the amount of 15 basis points (0.15%) on the amount of such Lender’s Commitment;
(iiic) to the General Administrative extent invoiced, the Lenders, the Agent and the Book-Runner shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart payment or reimbursement of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable their out-of-pocket expenses (in connection with this Amendment and any other out-of-pocket expenses of the Lenders, the Agent or the Book-Runner required to be paid or reimbursed pursuant to the Credit Agreement, including the reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentcounsel for the Agent;
(ivd) the General Administrative Agent Borrowers shall have received delivered to the Agent such certificates of resolutions or other actionauthorized officers of the Borrowers and the Guarantors, incumbency certificates and/or other certificates of Responsible Officers Governmental Authorities, certified copies of each Loan Party the certificates of incorporation, or formation, bylaws and operating agreements, as applicable, of the Borrowers and the Guarantors (or certified confirmation that no amendments, modifications or revisions have been to those previously certified and delivered to the Agent, as applicable), certified copies of resolutions of the directors, managers or members, as applicable of the Borrowers and the Guarantors and such other documents, instruments and agreements as the General Administrative Agent may reasonably shall require evidencing to evidence the identityvalid corporate existence and authority to conduct business of the Borrowers and the Guarantors and the due authorization, authority execution and capacity delivery of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment any other documents related to this Amendment, and any other legal matters relating to the Borrowers, the Guarantors, any Subsidiary or the other Loan Documents by the Borrowers and/or the Guarantors, all in a form and substance reasonable satisfactory to which such Loan Party is a party or is to be a partythe Agent and its counsel;
(ve) the General Administrative Agent Borrowers shall have received evidence reasonably satisfactory delivered to it that the U.S. Borrower has given an irrevocable call notice Agent favorable opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel to redeem all 2009 Notes outstanding on the First Amendment Borrowers and the Guarantors, and general counsel to the Parent, each dated as of the Effective Date Date, addressed to the Agent and has taken the Lenders and covering such other steps matters in connection with the redemption of the 2009 Notes foregoing as the General Administrative Agent or the Lenders may reasonably requirerequest, in a form and substance reasonably satisfactory to the Agent and its counsel; and
(vif) the General Administrative Agent Borrowers shall have received evidence delivered to the Agent the definitive documents relating to the Pictou Disposition, the terms of which will be reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% Agent and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000its counsel.
Appears in 1 contract
Sources: Credit Agreement (Neenah Paper Inc)
Conditions to Effectiveness of Amendment. This Amendment Amendment, including the amendments set forth in Section 2, shall become effective and the provisions set forth in Sections 1 and 2 shall become operative, and each New Incremental Term Loan Lender shall make New Term Loans in the amount of its respective New Term Loan Commitment, on the date and at the time (the “First Amendment No. 2 Effective DateTime”) on at which all each of the following conditions precedent have been are satisfied or waivedwaived by each applicable party:
(ia) The Administrative Agent shall have received executed signature pages to this Amendment from each Lender party hereto, the General Borrower and each other Loan Party.
(b) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized certificate from an officer or director of the U.S. Borrower, Borrower stating that the other Borrowers, Revolving Facility Agreement shall have become effective pursuant to and in accordance with the Majority Lenders terms and Extending Lenders conditions thereof and Loans (as defined in the Revolving Facility Agreement) shall have been made available to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;Borrower.
(iic) the General Administrative Agent The Incremental Term Lenders party hereto shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment No. 2 Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required Time to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;the extent invoiced at least one Business Day prior to the Amendment No. 2 Effective Time.
(ivd) the General The Administrative Agent shall have received such certificates a certificate of the Secretary or an Assistant Secretary of the Borrower and each Guarantor setting forth (i) resolutions of the its board of directors or other actionappropriate governing body with respect to the authorization of the Borrower or such Guarantor to execute and deliver the Amendment and to enter into the transactions contemplated hereby, incumbency certificates and/or other certificates (ii) the officers of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof Borrower or such Guarantor (y) who are authorized to sign this Amendment and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as a Responsible Officer its representative for the purposes of signing documents and giving notices and other communications in connection with this Amendment and the transactions contemplated hereby, (iii) specimen signatures of such authorized officers, and (iv) the articles or certificate of incorporation and by-laws or other Loan Documents applicable organizational documents of the Borrower and such Guarantor, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to which such Loan Party is a party or is to be a party;the contrary.
(ve) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given a certificate from an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption officer or director of the 2009 Notes Borrower attaching the same (i) certificates of good standing from the applicable Secretary of State (or equivalent) of the State of organization of each Loan Party and (ii) certificate of insurance coverage of the Borrower, in each case, as delivered to the General Administrative Agent may reasonably require; andadministrative agent under the Revolving Facility Agreement.
(vif) The New Incremental Term Lenders shall have received, on behalf of itself, and the General New Incremental Term Lenders, an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Borrower and the Guarantors.
(g) The Administrative Agent shall have received evidence reasonably satisfactory to it a certificate from an authorized officer of the Borrower that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) Merger shall have been consummated or will be not less than $700,000,000.consummated substantially concurrently with the Amendment No. 2
Appears in 1 contract
Sources: Credit Agreement (Forest Oil Corp)
Conditions to Effectiveness of Amendment. This The Bank’s willingness to agree to the amendments set forth in this Amendment shall become effective on is subject to the date (the “First Amendment Effective Date”) on which all prior satisfaction of the following conditions precedent have been satisfied or waivedconditions:
(i) 1. Execution by all parties and delivery to the General Administrative Agent shall have received a counterpart Bank of this Amendment, executed the Consent of Guarantor, and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;Restated Note.
(ii) the General Administrative Agent 2. The Bank shall have received an the following: (a) a certificate of Borrower and Guarantor, dated as of the date hereof and executed Acknowledgment by its respective secretary which shall (i) certify resolutions authorizing the execution, delivery and Consent, in the form set forth at the end performance of this Amendment, from the Restated Note, the Consent of Guarantor, as applicable, (ii) identify by name and title and bear the signature of each Loan Party signatory thereto;
officer of Borrower and Guarantor authorized to sign the foregoing, and (iii) certify to the General Administrative Agent shall have received current Organizational Documents of Borrower and Guarantor attached to such certificate, (b) a good standing certificate for Borrower and Guarantor from its jurisdiction of formation. MEDPACE INTERMEDIATECO, INC., a Delaware corporation (the “Guarantor”) consents to the provisions of the foregoing Amendment No. 4 to Loan Documents (the “Amendment”) and all prior amendments (if any) and confirms and agrees that: (a) for distribution to each Term Lender which has delivered an executed counterpart the Guarantor’s obligations under its Guaranty Agreement dated as of this Amendment September 30, 2019 (the “Guaranty”), relating to the General Administrative Agent on or prior to Obligations referenced in the First Amendment Effective DateAmendment, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined shall be unimpaired by the General Administrative Agent in its sole discretion) and Amendment; (b) all other fees and amounts due and payable on the Guarantor has no defenses, set offs, counterclaims, discounts or prior charges of any kind against the Bank, its officers, directors, employees, agents or attorneys with respect to the First Amendment Effective Date Guaranty; and (c) all of the terms, conditions and covenants in the Guaranty remain unaltered and in full force and effect and are hereby ratified and confirmed and apply to the Obligations, as modified by the Amendment. The Guarantor certifies that all representations and warranties made in the Guaranty are true and correct. The Guarantor hereby confirms that any collateral for which invoices have been presentedthe Obligations, including liens, security interests, mortgages, and pledges granted by the Guarantor or third parties (if applicable), shall continue unimpaired and in full force and effect, shall cover and secure all reasonable out-of-pocket expenses (including reasonable feesof the Guarantor’s existing and future Obligations to the Bank, charges as modified by this Amendment. By signing below, the Guarantor agrees that this Consent, the Guaranty, the other Loan Documents, any amendments thereto and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
information, notice, signature card, agreement or authorization related thereto (iveach, a “Communication”) may, at the General Administrative Agent shall have received Bank’s option, be in the form of an electronic record. Any Communication may, at the Bank’s option, be signed or executed using electronic signatures. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Bank of a manually signed paper Communication which has been converted into electronic form (such certificates of resolutions or other actionas scanned into PDF format) for transmission, incumbency certificates delivery and/or other certificates of Responsible Officers of each Loan Party as retention. The Guarantor acknowledges and agrees that the General Administrative Agent may reasonably require evidencing methods for delivering Communications, including notices, under the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Guaranty and the other Loan Documents include electronic transmittal to which such Loan Party is a any electronic address provided by any party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant other party from time to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000time.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject to the date satisfaction of all the following conditions precedent (the first date on which such conditions have been satisfied being referred to herein as the “First Sixth Amendment Effective Date”):
(a) on which The Administrative Agent (or its counsel) shall have received (i) a duly executed and completed counterpart hereof that bears the signature of the Borrower and each other Loan Party, (ii) a duly executed and completed counterpart hereof that bears the signature of the Administrative Agent and (iii) duly executed and completed counterparts hereof that bear the signature of all of the following conditions precedent Lenders;
(b) The Administrative Agent shall have been satisfied received an Acknowledgment and Confirmation in the form of Annex I hereto from an authorized officer of each Loan Party;
(c) The Administrative Agent (or waived:
its counsel) shall have received (i) a duly executed and completed counterpart of the General fee letter, to be dated as of the Sixth Amendment Effective Date (the “Sixth Amendment Fee Letter”), between the Administrative Agent and the Borrower, that bears the signature of the Borrower and (ii) a duly executed and completed counterpart of the Sixth Amendment Fee Letter that bears the signature of the Administrative Agent;
(d) the Administrative Agent shall have received a counterpart perfection certificate (the “Perfection Certificate”), in form substantially consistent with the perfection certificate delivered in connection with the Closing Date, dated as of the Sixth Amendment Effective Date or as of a recent date (as required under the Fifth Amendment and Limited Waiver to Credit Agreement, dated as of September 2, 2022 (the “Fifth Amendment”));
(e) the Borrower shall have provided to the Administrative Agent Lien searches from the Secretary of State (or comparable state authority) of the jurisdictions of organization of each of the Loan Parties;
(f) Upon and after giving effect to this Amendment, executed and delivered by a duly authorized officer (i) all of the U.S. Borrowerrepresentations and warranties set forth in Section 4 below and in the Amended Credit Agreement will be true and correct, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (viii) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agentand no Default or Event of Default shall exist;
(iig) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart reimbursement of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% reasonable and documented out of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement NAI-1533756051v20 and (ii) on behalf of itself, its Affiliates and each Lender for the account of each Lender that duly executes this Amendment on or prior to which 9:00 a.m. New York time on November 21, 2022 (or such Loan Party is later date and time as notified by the Borrower in writing to the Lenders through the Administrative Agent), a party or is fee equal to be a party;1.00% of the aggregate outstanding principal amount of the Revolving Commitments and Term Loans held by such Lender on the Sixth Amendment Effective Date; and
(vh) the General The Administrative Agent shall have received evidence all documentation and other information about the Loan Parties as shall have been reasonably satisfactory requested in writing at least five (5) Business Days prior to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Sixth Amendment Effective Date and has taken such other steps in connection with by the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) required by regulatory authorities under applicable Anti-Money Laundering Laws, including the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% USA PATRIOT Act and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000other “know your customer” rules and regulations.
Appears in 1 contract
Sources: Credit Agreement (Blue Bird Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date first written above (the “First Amendment No. 1 Effective Date”) on which all upon the satisfaction (or waiver in writing by the Agent and Required Purchasers) of the following conditions precedent have been satisfied or waivedprecedent, each in form and substance reasonably satisfactory to, and the satisfaction of, the Agent and each Purchaser:
(ia) the General Administrative Agent shall have received a counterpart fully executed copy of this Amendment, Amendment executed and delivered by a duly authorized officer each of the U.S. BorrowerCredit Parties, each of the other BorrowersPurchasers (constituting Required Purchasers), and the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(b) Receipt by Agent of executed copies of (i) the Heads of Agreement regarding governance matters among Issuer, FF Global Partners LLC and FF Top Holding LLC and (ii) the General Administrative Mutual Release among FF Global Partners LLC, the FFGP Controlled Affiliates party thereto, the Executive Committee Members party thereto, FF Top Holding LLC, Issuer, the FFIE Controlled Affiliates party thereto, Property Solutions Acquisitions Corp., and the Directors party thereto (in each case, as defined therein);
(c) Agent shall have received an a fully executed Acknowledgment copies of support letters from FF Top Holding LLC and Consent, in Season Smart Limited consenting to the form Shareholder Approval on the terms and conditions set forth at in such support letters;
(d) Receipt of all customary resolutions or written consents of the end of Credit Parties’ appropriate governing body approving and authorizing this Amendment;
(e) [reserved];
(f) After giving effect to this Amendment, from each Loan Party signatory thereto;
(iii) subject to the General Administrative Agent Bridge Waivers, no Default or Event of Default shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on occurred and be continuing or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined shall be caused by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid transactions contemplated by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireAmendment; and
(vig) Subject to the General Administrative Agent shall have received evidence reasonably satisfactory to it that Bridge Waivers, the aggregate principal amount representations and warranties contained in the Amended Securities Purchase Agreement and the other Financing Documents are true and correct in all material respects (without duplication of any materiality qualifier) as of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (date hereof, both before and after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% transactions contemplated by the Amended Securities Purchase Agreement and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000other Financing Documents.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment The amendment of the Existing Credit Agreement and associated provisions set forth herein shall become effective as of the first date on which the date following occur or have been waived in accordance with Section 9.5 of the Existing Credit Agreement (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:):
(ia) the General The Administrative Agent shall have received a counterpart of this AmendmentAmendment Agreement, executed and delivered by a duly authorized officer of Parent, the U.S. Borrower, Continuing Lenders constituting the other BorrowersRequisite Lenders, each New Lender and the Majority Lenders Administrative Agent.
(b) The Administrative Agent shall have received, in respect of each of Parent and Extending Lenders the Borrower, (i) a certificate of such Credit Party executed by the secretary or assistant secretary of such Credit Party attaching (A) a copy of each Organizational Document of such Credit Party, which shall, to the extent required applicable, be certified as of the Amendment Effective Date or a recent date prior thereto by the appropriate Governmental Authority provided that, in lieu of the delivery requirement in this clause (viA), if there has been no change to, and no action has been taken to amend, the Organizational Documents of such Credit Party since the Amendment Effective Date, the Administrative Agent shall accept a certification from an Authorized Office of such Credit Party as to such fact, (B) below; provided that signature and incumbency certificates of the officers of such Credit Party, (C) resolutions of the board of directors or similar governing body of such Credit Party approving and authorizing the execution, delivery and performance of this Amendment Agreement, certified as of the Amendment Effective Date by such secretary or assistant secretary as being in full force and effect without modification or amendment, and (D) a good standing certificate from the applicable Governmental Authority of such Credit Party’s jurisdiction of organization, dated the Amendment Effective Date or a recent date prior thereto, and (ii) such other documents and certificates as the Administrative Agent may reasonably request relating to the organization, existence and good standing of each of Parent and the Borrower and the authorization of the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent and the Arrangers shall have received payment of all fees and expenses required to be paid or reimbursed by Parent or the Borrower under or in connection with this Amendment Agreement, including those fees and expenses set forth in Section 5 hereof and in any Lender may signify its consent arrangement letter or fee letter entered into by the Parent or the Borrower with any Arranger in connection with this Amendment Agreement.
(d) At the time of and immediately after giving effect to this Amendment by instead executing a “lender addendum” Agreement, no Default or Event of Default shall have occurred and be continuing or would result therefrom.
(e) The representations and warranties made or deemed to be made in a form this Amendment Agreement shall be true and correct (i) in the case of the representations and warranties qualified or modified as provided by to materiality in the text thereof, in all respects and (ii) otherwise, in all material respects, in each case on and as of the Amendment Effective Date, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be so true and correct, or true and correct in all material respects, as applicable, on and as of such earlier date.
(f) The Borrower shall have (i) prepaid all accrued and unpaid interest and fees in respect of the Existing Term Loans to but excluding the Amendment Effective Date and (ii) paid to the Administrative Agent;, for the account of each Existing Lender, any amounts owing to such Existing Lender under Section 2.10(b) of the Existing Credit Agreement as a result of the effectiveness of this Amendment Agreement.
(iig) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, in from the form set forth at Borrower a Conversion/Continuation Notice contemplating the end commencement of this Amendment, from each Loan Party signatory thereto;
(iii) a new Interest Period with respect to the General Tranche B Term Loans commencing on the Amendment Effective Date. The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to notify Parent, the General Administrative Agent on or prior to Borrower, the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Existing Lenders and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) New Lenders of the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with notice shall be conclusive and binding. Notwithstanding the redemption foregoing, this Amendment Agreement shall not become effective, and the obligations of the 2009 Notes applicable Continuing Lenders and the New Lenders to assume Tranche B Term Loans as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount provided for herein will automatically terminate, if each of the Tranche A U.S. Revolving Credit Commitments conditions set forth or referred to in this Section 3 has not been satisfied at or prior to 5:00 p.m., New York City time, on the First Tuesday, February 28, 2017 (it being understood that any such failure of this Amendment Effective Date (after giving effect Agreement to the minimum Revolving Credit Commitment Reduction of 33.33% and become effective will not affect any simultaneous addition rights or obligations of any new U.S. Revolving Lenders pursuant to Section 2.6 of Person under the Existing Credit Agreement) will ). For purposes of determining compliance with the conditions specified above, each Lender party to this Amendment Agreement shall be not less than $700,000,000deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Persons unless an officer of the Administrative Agent responsible for the transactions contemplated by the Credit Documents shall have received notice from such Person prior to the Amendment Effective Date specifying its objection thereto. The Administrative Agent hereby consents to this Amendment Agreement and confirms that each New Lender is acceptable to it.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all is subject to satisfaction of the following conditions precedent have been satisfied or waived:(the date of such satisfaction being the “Amendment Effective Date”):
(i) the General Administrative Agent shall have received duly executed counterparts of this Amendment from (A) the Borrowers, Holdings and the other Guarantors, (B) each Exchanging Term Lender, (C) each Revolving Lender and (D) each Additional Term Lender, (ii) the Administrative Agent shall have received a counterpart duly executed copy of that certain First Amendment to Second Lien Credit Agreement, dated as of the date hereof, among Borrowers, Holdings and the other Guarantors, the lenders party thereto, and Jefferies Finance LLC, as administrative agent and collateral agent thereunder, in form and substance reasonably satisfactory to the Administrative Agent and (iii) the Exchanging Term Lenders party hereto shall constitute the Required Lenders immediately prior to giving effect to this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iib) the General Administrative Agent shall have received a duly completed and executed Borrowing Request (i) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time (or such later time on such Business Day as may be reasonably acceptable to the Administrative Agent), three (3) Business Days before the date of the proposed Borrowing or (ii) in the case of an executed Acknowledgment and ConsentABR Borrowing, not later than 12:00 noon, New York City time (or such later time on such Business Day as may be reasonably acceptable to the Administrative Agent), one (1) Business Day before the date of the proposed Borrowing, in each case in respect of the form set forth at Term B-1 Loans in accordance with Section 2.03 of the end Amended First Lien Credit Agreement (which Borrowing Request may be conditioned on the effectiveness of this Amendment, from each Loan Party signatory thereto);
(iiic) each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct in all material respects (except that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall have been true and correct in all respects as of such earlier date);
(d) at the time of and immediately after giving effect to this Amendment and the Credit Extensions occurring on the Amendment Effective Date and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing;
(e) the General Administrative Agent shall have received (ai) for distribution to a certificate dated as of the Amendment Effective Date and signed by a Responsible Officer of Holdings, confirming compliance with the conditions set forth in Sections 4(c) and 4(d) herein and (ii) a certificate from the chief financial officer (or other officer with reasonably equivalent duties) of Holdings, on behalf of each Term Lender which has delivered an executed counterpart of this Amendment Credit Party, in form, scope and substance reasonably satisfactory to the General Administrative Agent, and demonstrating that after giving effect to the transactions contemplated hereby, the Credit Parties are and will be, on a consolidated basis, solvent;
(f) the Administrative Agent shall have received, on or prior behalf of itself, the Collateral Agent, the Issuing Bank and the Lenders (including the Swing Line Lender), favorable written opinions, in each case (1) in form and substance reasonably satisfactory to the First Administrative Agent, (2) dated as of the Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment 3) addressed to the General Administrative Agent on or prior to Agent, the time that Collateral Agent, the General Administrative Agent has received executed counterparts of this Amendment from Issuing Bank and the Majority Lenders, as determined by Lenders (including the General Administrative Agent in its sole discretionSwing Line Lender) and (b4) all other fees covering such corporate, security interest and amounts due related matters relating to this Amendment and payable on or prior to the First Amendment Effective Date transactions contemplated hereby as the Administrative Agent shall reasonably request and which are customary for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements transactions of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe type contemplated herein;
(ivg) the General Administrative Agent shall have received (i) a certificate of the secretary or assistant secretary (or equivalent officer) on behalf of each Credit Party dated as of the Amendment Effective Date, certifying (A) that attached thereto is a true and complete copy of each Organizational Document of such certificates Credit Party and, with respect to the articles or certificate of incorporation or formation (or similar document) certified as of a recent date by the Secretary of State (or other applicable Governmental Authority) of the jurisdiction of its organization, or with respect to any such Organizational Documents of any Credit Party that have been previously delivered to the Administrative Agent, a certification that such Organizational Documents have not changed since the Closing Date or the date such Credit Party became a Credit Party under the Loan Documents, (B) that attached thereto is a true and complete copy of resolutions or other action, incumbency certificates and/or other certificates duly adopted by the Board of Responsible Officers Directors of each Credit Party authorizing and approving the transactions contemplated by this Amendment and the other Loan Party as Documents and the General Administrative Agent may reasonably require evidencing the identityexecution, authority delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Credit Party is a party and, in the case of the Borrowers, the incurrence of Indebtedness pursuant to the Term B-1 Loans, and that such resolutions have not been modified, rescinded or is amended and are in full force and effect as of the date of such certificate and (C) as to be the specimen signature and incumbency of each officer executing this Amendment or any other document delivered in connection herewith on behalf of such Credit Party (together with a partycertificate of another officer as to the specimen signature and incumbency of the officer executing the certificate in this clause (i)); and (ii) to the extent applicable, a certificate as to the good standing (or equivalent certificate in the applicable jurisdiction of organization) of each Credit Party as of a recent date, from such Secretary of State (or other applicable Governmental Authority); all in form and substance reasonably satisfactory to the Administrative Agent and its counsel;
(vh) the General Administrative Agent shall have received evidence reasonably satisfactory received:
(i) for distribution to it the Amendment Lead Arranger and the Additional Term Lender, all fees and expenses agreed to by the Borrowers or Holdings that are due and payable on or before the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date (including reasonable and has taken documented out-of-pocket fees, expenses and disbursements of legal counsel);
(ii) for distribution to each Lender that holds Refinanced Term Loans immediately prior to giving effect to this Amendment, for the repayment in full of all such Refinanced Term Loans, an amount equal to the sum of (x) the principal of and unpaid interest accrued to the Amendment Effective Date on the outstanding Refinanced Term Loans of such Lender and (y) all fees and other steps in connection with amounts owing to or accrued for the redemption account of each such Lender that is a Non-Consenting Lender under the First Lien Credit Agreement (including any amounts under Sections 2.12 and 2.13 of the 2009 Notes as the General Administrative Agent may reasonably require; andFirst Lien Credit Agreement) in respect of such Refinanced Term Loans;
(viiii) for distribution to each Exchanging Term Lender, an amount equal to all accrued and unpaid interest on its Existing Term Loans that are being exchanged in accordance with Section 3(a) hereof up to and including the General Administrative Agent shall have received evidence reasonably satisfactory Amendment Effective Date;
(iv) for distribution to it that each Exchanging Term Lender and each Revolving Lender party hereto, an amendment fee equal to 0.125% of the sum of the aggregate principal amount of each such Lender’s aggregate outstanding Existing Term Loans and Revolving Commitments (whether used or unused) as of the Tranche A U.S. Revolving Credit Commitments date hereof; and
(v) for distribution to the Additional Term Lender, as fee compensation for the funding of the Additional Term Lender’s Additional Term B-1 Loans, a closing fee in an amount equal to 0.25% of the stated principal amount of the Additional Term Lender’s Additional Term B-1 Loans, payable to the Additional Term Lender from the proceeds of its Additional Term B-1 Loans as and when funded on the First Amendment Effective Date; such closing fee will be in all respects fully earned, due and payable on the Amendment Effective Date and non-refundable and non-creditable thereafter; and
(after giving effect i) to the minimum Revolving Credit Commitment Reduction of 33.33% extent requested by the Administrative Agent or any Lender, there shall have been delivered to the Administrative Agent or such Lender documentation and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of other information that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Existing Credit Agreement) will be not less than $700,000,000Patriot Act.
Appears in 1 contract
Sources: First Lien Credit Agreement (Transfirst Holdings Corp.)
Conditions to Effectiveness of Amendment. (a) This Amendment Amendment, including the amendments set forth in Section 4 and the acknowledgements, consents and agreements set forth in Section 5, shall become effective on the date (the “First Amendment No. 2 Effective Date”) on which all each of the following conditions precedent are satisfied or waived by the applicable party; provided that (x) Sections 1 and 2 of this Amendment shall not become operative until each of the conditions set forth in Section 8 of this Amendment have been satisfied or waivedwaived by the applicable party and (y) Section 3 of this Amendment shall not become operative until each of the conditions set forth in Section 9 of this Amendment have been satisfied or waived by the applicable party:
(i) the General Administrative Agent shall have received executed signature pages to this Amendment from the Required Lenders, Holdings, the Borrower, each other Credit Party that is party to a Credit Document, Citibank, N.A., in its capacity as Administrative Agent, Collateral Agent, Swingline Lender, Revolving Letter of Credit Issuer and Deposit Letter of Credit Issuer and JPMorgan Chase Bank, N.A., in its capacity as Revolving Letter of Credit Issuer;
(ii) payment by the Borrower to the Administrative Agent, for the account of each Lender (other than any Defaulting Lender and any Posting Lender) that has returned an executed signature page to this Amendment to the Administrative Agent at or prior to 12:00 p.m., New York City time on April 7, 2011 (the “Consent Deadline”) consenting to the amendments set forth in Section 4 and the acknowledgements and consents set forth in Section 5, an amendment fee (the “Amendment Fee”) in an amount equal in the case of Term Loans, Deposit L/C Loans and Revolving Credit Commitments, 0.50% of the sum of aggregate principal amount of the Term Loans, Deposit L/C Loans and the Revolving Credit Commitment of such Lender outstanding or in effect, as applicable, as of the Consent Deadline (it being understood that the Borrower shall have no liability to pay the Amendment Fee if the Amendment No. 2 Effective Date does not occur);
(iii) the Borrower shall have received from Parent repayment of $770,000,000 of the Parent Loan previously made under the Existing SG&A Note;
(iv) the Administrative Agent shall have received from Borrower a certificate of an Authorized Officer of the Borrower to the effect that representations and warranties set forth in Section 6 hereof are true and correct on and as of the Amendment No. 2 Effective Date;
(v) the Administrative Agent shall have received a counterpart copy of this Amendmentthe resolutions, executed in form and delivered by substance reasonably satisfactory to the Administrative Agent, of the board of directors, other managers or general partner of each Credit Party (or a duly authorized officer committee thereof) authorizing the execution, delivery and performance of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the performance of the Credit Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) Credit Documents, in each case as modified by this Amendment, certified as of the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment No. 2 Effective Date by an Authorized Officer of each Credit Party as being in full force and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireeffect without modification or amendment; and
(vi) payment by the General Borrower of the reasonable costs and expenses of the Administrative Agent in connection with this Amendment (including the reasonable fees, disbursements and other charges of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP as counsel to the Administrative Agent).
(b) The Administrative Agent shall have received evidence reasonably satisfactory to it that notify the aggregate principal amount Borrower and the Lenders of the Tranche A U.S. Revolving Credit Commitments on the First Amendment No. 2 Effective Date (promptly after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000occurrence thereof.
Appears in 1 contract
Sources: Amendment No. 2 (Energy Future Intermediate Holding CO LLC)
Conditions to Effectiveness of Amendment. This Amendment shall ---------------------------------------- become effective on the date (the “First actual date of such effectiveness, the "Eighth Amendment Effective Date”") on which all as of the following conditions precedent have been satisfied or waiveddate first above written when:
(ia) This Amendment shall have been duly executed and delivered by each of the General Administrative parties hereto.
(b) The Acknowledgment and Consent dated as of the date hereof by the Company and Pameco Investment Company, Inc. shall have been duly executed and delivered by each of the parties thereto.
(c) The Agent shall have received a counterpart certificate of the Secretary or an Assistant Secretary of each Loan Party, dated as of the Eighth Amendment Effective Date, and certifying (i) as to the due authorization, execution, delivery and performance of this Amendment, the Acknowledgment and Consent attached hereto and related matters, and (ii) as to the incumbency and specimen signature of such Loan Party's officers executing this Amendment and all other documents required or necessary to be delivered hereunder or in connection herewith. Such certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate.
(d) The Agent shall have received true and complete copies of the certificate of incorporation and by-laws of each Loan Party, certified as of the Eighth Amendment Effective Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of such Loan Party.
(e) The Agent shall have received an opinion of the Company's counsel with respect to corporate existence, due authorization, execution and delivery, enforceability and no conflict with law in form and substance satisfactory to the Agent.
(f) The Agent, for the benefit of the Tranche C Term Loan Lenders, shall have received an upfront fee of $100,000.
(g) The Agent shall have received copies, attached to a certificate from the Secretary or Assistant Secretary of the Company, certifying as true and correct (i) the loan agreement entered into between Quilvest and the Company (the "Quilvest Loan Agreement") which shall contain provisions which grant to Quilvest a security interest in the Collateral (other than the Seller Collateral (as defined in the Receivables Purchase Agreement)) and otherwise be in form and substance acceptable to the Agent and Lenders, (ii) any UCC financing statements to be executed by the Company in favor of Quilvest, (iii) the Subordination Agreement and (iv) any and all other documents or certificates executed in connection with the Quilvest Loan Agreement, together with evidence that the loan made by Quilvest pursuant to the Quilvest Loan Agreement in an amount not less than $7,500,000 has funded (the "Quilvest Loan").
(i) The Agent shall have received, for the account of each Tranche C Term Loan Lender, the Tranche C Term Loan Notes in the form of Exhibit B to this --------- Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Company.
Appears in 1 contract
Sources: Credit Agreement (Pameco Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(i) the General Administrative Agent shall have received each of the following (the “Effective Date”):
(a) a counterpart of this Amendment, Amendment executed and delivered by a duly authorized officer each of the U.S. Borrower, the other BorrowersSubsidiary Guarantors, the Majority Lenders (including each New Lender) and Extending Lenders the Administrative Agent.
(b) a counterpart of a Note payable to each New Lender if such New Lender requests a Note in connection with this Amendment.
(c) a pro forma Borrowing Base Certificate showing a calculation of the Borrowing Base after giving effect to this Amendment.
(d) such other documents and certificates as the Administrative Agent, any New Lender or its counsel may reasonably request relating to the organization, existence and good standing of Borrower and Subsidiary Guarantors, and the authorization of the transactions contemplated by this Amendment, all in form and substance reasonably satisfactory to the Administrative Agent, such New Lender and its respective counsel.
(e) to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing the Borrower qualifies as a “lender addendumlegal entity customer” in a form as provided by under the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and ConsentBeneficial Ownership Regulation, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or least five days prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed any Lender that the amendment fee is payable to has requested, in a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment written notice to the General Administrative Agent on or Borrower at least 10 days prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority LendersEffective Date, as determined by the General Administrative Agent a Beneficial Ownership Certification in its sole discretion) and (b) all other fees and amounts due and payable on or prior relation to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent Borrower shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Beneficial Ownership Certification.
(f) the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent Lender shall have received evidence all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, as reasonably satisfactory requested by the Administrative Agent and each Lender.
(g) the Borrower shall have paid in full to it that the U.S. Borrower has given an irrevocable call notice Administrative Agent for the benefit of the Lenders all fees and expenses related to redeem all 2009 Notes outstanding this Amendment or the Credit Agreement owing on the First Amendment Effective Date and has taken such other steps in connection with under any Loan Document to the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory extent invoiced, including any upfront fee due to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments any Lender on the First Amendment Effective Date (after giving effect to but for the minimum Revolving Credit Commitment Reduction avoidance of 33.33% and doubt any simultaneous addition payment of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will Administrative Agent’s legal fees shall be not less than $700,000,000paid by separate wire transfer in accordance with an invoice provided by Administrative Agent’s counsel).
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Lafayette Square USA, Inc.)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on and the date amendments set forth in Section 2 hereof, are subject to satisfaction (or waiver by the “First Amendment Effective Date”Administrative Agent and the Lender party hereto) on which all of the following conditions precedent (the first date of such satisfaction (or waiver) being the “Amendment No. 1 Effective Date”):
(a) the Administrative Agent (or its counsel) shall have been satisfied or waived:
received (i) from each of the General Borrower and the Guarantors, and (ii) from the sole Lender party hereto constituting the Required Lenders either (x) a counterpart of this Amendment signed on behalf of such party or (y) written evidence reasonably satisfactory to the Administrative Agent shall have received (which may include delivery of a signed signature page of this Amendment by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iib) the General Borrower shall have delivered to the Administrative Agent shall have received an executed Acknowledgment and Consent(or its counsel) a certificate from a Responsible Officer of the Borrower, in dated as of the form Amendment No. 1 Effective Date, to the effect set forth at the end of this Amendment, from each Loan Party signatory theretoin Section 4(b) and (d) hereof;
(iiic) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to or substantially concurrently with the First Amendment No. 1 Effective Date, an amendment fee equal the Borrower shall have paid (or caused to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment be paid) to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer incurred in connection with the preparation, execution and delivery of this Amendment and the other Loan Documents to which such Loan Party is a party or is instruments and documents to be a party;
delivered hereunder, if any (v) but limited, in the General case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent shall have received evidence reasonably satisfactory Agent), in each case, to it that the U.S. Borrower has given an irrevocable call notice extent invoiced at least one Business Day prior to redeem all 2009 Notes outstanding on the First Amendment No. 1 Effective Date and has taken such other steps in connection with otherwise required to be paid by the redemption Borrower on or prior to the Amendment No. 1 Effective Date pursuant to, and subject to the limitations set forth in, Section 9.05 of the 2009 Notes Existing Credit Agreement and (without duplication) the correlative provisions set forth in any other Loan Document (as defined in the General Administrative Agent may reasonably requireExisting Credit Agreement); and
(vid) prior to or substantially concurrently with the General Administrative Agent Amendment No. 1 Effective Date, the Borrower shall have received evidence reasonably satisfactory paid (or caused to it that be paid) to the aggregate principal amount Administrative Agent, for the account of the Tranche A U.S. Revolving Credit Commitments sole Lender party hereto, all fees due and payable to such Lender in connection with this Amendment, on the First Amendment Effective Date (after giving effect terms and subject to the minimum Revolving Credit Commitment Reduction of 33.33% conditions as separately agreed in writing between the Borrower and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Lender.
Appears in 1 contract
Sources: Delayed Draw Bridge Credit Agreement (Spirit AeroSystems Holdings, Inc.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all only when and if each of the following conditions precedent have been satisfied or waivedis satisfied:
(i) the General 4.1 The Administrative Agent shall have received a counterpart of this Amendment, Amendment duly executed and delivered by a duly authorized officer of the U.S. Borrower, the other BorrowersLoan Guarantors, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;, and the Lenders.
(ii) 4.2 The Lenders and the General Administrative Agent shall have received an executed Acknowledgment and Consent, in payment of all fees required to be paid by the form set forth at Borrower under the end terms of this Amendment, from each Loan Party signatory thereto;the Credit Agreement or any separate fee letter.
(iii) the General 4.3 The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers certificate of each Loan Party as executed by its Secretary or Assistant Secretary, which shall (A) certify the General Administrative Agent may reasonably require evidencing resolutions of its Board of Directors, members or other body authorizing the identityexecution, authority delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which it is a party, (B) identify by name and title and bear the signatures of the Financial Officers and any other officers of such Loan Party authorized to sign this Amendment and the other Loan Documents to which it is a party party, and (C) contain appropriate attachments, including the certificate or is articles of incorporation or organization of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by laws or operating, management or partnership agreement or, in the alternative, contain an appropriate certification that there have been no amendments to be such Loan Party’s organizational documents since copies thereof were last furnished to the Administrative Agent, and (ii) a party;long form good standing certificate for each Loan Party from its jurisdiction of organization.
(v) the General 4.4 The Administrative Agent shall have received evidence reasonably satisfactory the results of recent lien searches in the jurisdictions where each of the Loan Parties is organized, and such searches shall reveal no liens on any of the assets of the Loan Parties except for liens permitted by Section 6.02 of the Credit Agreement.
4.5 The Borrower shall have delivered or caused to it that be delivered (a) a duly executed Patent Security Agreement, Trademark Security Agreement and Copyright Security Agreement with respect to any patent, trademark or copyright maintained by any Loan Party in which the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on Administrative Agent does not have a first priority perfected security interest for the First Amendment Effective Date benefit of the Lenders, (b) a Collateral Access Agreement signed by the owner of any warehouse of leased facility in which Collateral is located if a signed Collateral Access Agreement for such location is not currently in effect, (c) a deposit account control agreement signed by each depositary institution holding a deposit account maintained by any of the Loan Parties if a signed deposit account control agreement is not currently in effect, and has taken (d) such other steps documents as the Administrative Agent may reasonably request in order to perfect (or maintain the perfection of) its first priority security interest in the Collateral for the benefit of the Lenders.
4.6 The Borrower shall have paid all invoices presented to the Borrower for expense reimbursements due to the Administrative Agent or any Lender pursuant to Section 9.03 of the Credit Agreement in connection with the redemption preparation and negotiation of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000this Amendment.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First "Amendment Effective Date”") on which all upon (a) payment by the Borrower to the Agent for the account of the following conditions precedent have been satisfied or waivedLender of the first installment of the amendment fee in an amount equal to $25,000 and (b) receipt by the Agent of the following, each in form and substance satisfactory to the Agent:
(i) the General Administrative Agent shall have received a counterpart counterparts of this Amendment, duly executed and delivered by a duly authorized officer of the U.S. each Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment Amended and Consent, Restated Revolving Credit Note in the form set forth at the end of this Amendment, from attached hereto as Annex A duly executed by each Loan Party signatory theretoBorrower;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an Note C in the form attached hereto as Exhibit B-4 duly executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documenteach Borrower;
(iv) certified copies of the General Administrative Agent shall have received such certificates articles of resolutions or incorporation and bylaws of Mid Bus and Brutzer, each as in effect on the Amendment Effective Date, and with respect to the other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Borrowers and the other Loan Documents Guarantors, a certificate of an appropriate officer of such Borrowers and Guarantors to the effect that none of such documents relating to such Borrowers and Guarantors have been amended or otherwise modified since July 31, 1998, the date on which such documents were last delivered to Agent and Lender under the Loan Party is a party or is to be a partyAgreement;
(v) certificates of incumbency and specimen signatures with respect to each of the General Administrative Agent shall have received evidence reasonably satisfactory officers of the Borrowers and the Guarantors who is authorized to execute and deliver the Loan Documents to which it is a party and each other certificate, agreement or other document to be executed by the Borrowers and the Guarantors in connection with this Amendment;
(vi) a certificate evidencing the good standing of each of Mid Bus and Brutzer in the jurisdiction of its incorporation and in each other jurisdiction in which it is required to be qualified as a foreign corporation to transact business as presently conducted;
(vii) a certificate of the President of Collins or of ▇▇▇ ▇▇▇ancial Officer that all representations and warranties of Borrowers set forth in the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on Loan Documents are true and correct as of the First Amendment Effective Date and has taken such other steps in connection with the redemption that no Default or Event of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date Default exists (after giving effect to this Amendment), and Agent and Lender shall be satisfied as to the minimum Revolving Credit Commitment Reduction of 33.33% truth and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.accuracy thereof;
Appears in 1 contract
Sources: Loan and Security Agreement (Collins Industries Inc)
Conditions to Effectiveness of Amendment. This Amendment (other than with respect to Section 3.1) shall become effective on the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been are satisfied or waived:
(a) The Administrative Agent (or its counsel) shall have received from the Administrative Agent, the L/C Issuer, the Swingline Lender, the Borrower, Holdings and Lenders constituting the Required Lenders either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the General Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received the net cash proceeds (the “Notes Proceeds”) from the incurrence of at least $1.5 billion of February 2013 First Lien Notes, to be applied to repay Term Loans as follows:
(i) first, to repay the aggregate principal amounts of Term B-1 Loans, Term B-2 Loans and Term B-3 Loans held by each Consenting Lender (other than a counterpart of this Amendment, executed and delivered by a duly authorized officer of Defaulting Lender) on the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders Amendment Effective Date which such Consenting Lender has elected to the extent required by clause be repaid at par as set forth on such Lender’s Consent Form (vi) as defined below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent);
(ii) second, to the General repayment of the aggregate principal amounts of Term B-5 Loans and Term B-6 Loans (such Lender’s “B5/B6 Submitted Amount”) held by each Consenting Lender (other than a Defaulting Lender) on the Amendment Effective Date which such Consenting Lender has elected to be repaid at par as set forth on such Lender’s Consent Form; provided that, if the aggregate B5/B6 Submitted Amount of all Consenting Lenders exceeds the lesser of (x) 20% of the outstanding principal amount of all Term B5 Loans and Term B-6 Loans on the Amendment Effective Date and (y) the amount of Notes Proceeds remaining after the application of the repayments pursuant to clause (i) above, the Borrower shall repay portions of the B5/B6 Submitted Amount on a ratable basis among such Consenting Lenders up to such lesser amount; and
(iii) third, to repay Term Loans elected to be repaid by the Borrower on the Amendment Effective Date.
(c) The Administrative Agent shall have received an executed Acknowledgment from the Borrower a consent fee payable for the account of each Consenting Lender (other than a Defaulting Lender) holding outstanding Revolving Facility Commitments or Term B-4 Loans as of the Amendment Effective Date equal to 0.10% of the sum of (x) the aggregate principal amount of Term B-4 Loans, if any, held by such Lender as of the Amendment Effective Date with respect to which a consent was delivered and Consent(y) the aggregate amount of the Revolving Facility Commitments, in if any, of such Lender as of the form set forth at the end of this Amendment, from each Loan Party signatory thereto;Amendment Effective Date with respect to which a consent was delivered.
(iiid) the General The Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent all fees payable thereto on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment and, to the General Administrative Agent extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority LendersEffective Date, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior including, to the First Amendment Effective Date for which invoices have been presentedextent invoiced, including reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by any the Loan Party Parties hereunder or under any other Loan Document;.
(ive) A reaffirmation agreement substantially in the General form previously delivered under the Credit Agreement shall have been executed and delivered by each party thereto.
(f) The Administrative Agent shall have received such certificates received, on behalf of resolutions itself, the Lenders and the L/C Issuer on the Amendment Effective Date, a written opinion of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or other actioncounsel reasonably acceptable to the Administrative Agent, incumbency certificates and/or as counsel for the Loan Parties, and (ii) each local counsel specified on Schedule 1 or other certificates of Responsible Officers of counsel reasonably acceptable to the Administrative Agent, in each Loan Party as case (a) dated the General Amendment Effective Date, (b) addressed to the Administrative Agent may reasonably require evidencing Agent, the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Lenders and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding L/C Issuer on the First Amendment Effective Date and has taken (c) in form and substance reasonably satisfactory to the Administrative Agent. Each Loan Party hereby instructs its counsel to deliver such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andopinions.
(vig) the General Administrative Agent The Borrower shall have received evidence reasonably satisfactory to it that the aggregate principal amount applicable regulatory approval for effectiveness of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect other than with respect to the minimum Extended Maturity Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders Facility Commitments to be established pursuant to Section 2.6 3.1 hereof) and the offering of the Existing Credit Agreement) will be not less than $700,000,000February 2013 First Lien Notes.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General The Administrative Agent shall have received (ai) (I) from each Cashless Option Tranche B-4 Lender and (II) from Additional Tranche B-5 Term Loan Lenders having Additional Tranche B-5 Term Loan Commitments equal in principal amount to the sum of (x) the principal amount of Existing Term Loans held by Non-Consenting Existing Tranche B-4 Term Loan Lenders plus (y) the principal amount of Existing Term Loans for distribution to each Term Lender which has delivered an executed the “Post-Closing Settlement Option” was selected, (ii) from the Administrative Agent, and (iii) from the Borrower and Holdings, either (x) a counterpart of this Amendment (or, in the case of such Cashless Option Tranche B-4 Lenders, a Consent to Amendment No. 9) signed on behalf of such party or (y) written evidence satisfactory to the General Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrower shall have paid (or caused to have been paid) to (i) all Existing Term Loan Lenders on or prior to the First Amendment No. 9 Effective Date, an amendment fee equal to 1.00% simultaneously with the making (or deemed making) of such Term Lender’s outstanding Tranche B-5 Term Loans under the Amended Credit Agreement, all accrued and unpaid interest on the First Existing Term Loans to, but not including, the Amendment No. 9 Effective Date and (it being agreed that ii) all Non-Consenting Existing Tranche B-4 Term Loan Lenders and all Post-Closing Option Tranche B-4 Lenders on the amendment fee is payable to a Amendment No. 9 Effective Date, simultaneously with the making (or deemed making) of Tranche B-5 Term Lender only if such Loans under the Amended Credit Agreement, all outstanding principal of their Existing Term Lender has delivered an Loans as of the Amendment No. 9 Effective Date;
(c) The Administrative Agent shall have received the executed counterpart legal opinion of this Amendment ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the General Credit Parties. The Borrower, Holdings and the Administrative Agent hereby instruct such counsel to deliver such legal opinion; |US-DOCS\155771128.5||
(d) The Borrower shall have paid (i) the Amendment No. 9 Arrangers the fees in the amounts previously agreed in writing to be received on or prior to the time that Amendment No. 9 Effective Date and (ii) the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses (including including, without limitation the reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Administrative Agent and the Amendment No. 9 Arrangers) required of the Administrative Agent for which invoices have been presented prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe Amendment No. 9 Effective Date;
(ive) The representations and warranties set forth in Section 2 above shall be true and correct;
(f) The Administrative Agent (or its counsel) shall have received (A) a certificate of each of (x) Holdings and the Borrower, dated as of the Closing Date, substantially in the form of Exhibit E to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer and the Secretary or any Assistant Secretary of Holdings and the Borrower, as applicable, and attaching the documents referred to in the following clause (B) and (B) (w) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrower authorizing (I) the General execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it is a party and the performance of the obligations under the Amended Credit Agreement and (II) in the case of the Borrower, the extensions of credit contemplated hereunder, (x) the Certificate of Incorporation and By-Laws or other comparable organizational documents, as applicable, of Holdings and the Borrower, (y) signature and incumbency certificates of the Authorized Officers of Holdings and the Borrower executing this Amendment and the other Credit Documents to which it is a party, and (z) a good standing certificate from the relevant Governmental Authority of the jurisdiction of organization of the Borrower and Holdings, dated the Amendment No. 9 Effective Date or a recent date prior thereto;
(g) The Administrative Agent shall have received such certificates a Notice of resolutions or other action, incumbency certificates and/or other certificates Borrowing in respect of Responsible Officers the Tranche B-5 Term Loans in accordance with Section 2.3 of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a partyAmended Credit Agreement;
(vh) the General Administrative Agent The Tranche B-5 Term Loan Lenders shall have received evidence prior to the Amendment No. 9 Effective Date such documentation and other information about the Borrower and the Guarantors as shall have been reasonably satisfactory requested in writing by such Lender at least 10 days prior to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment No. 9 Effective Date and has taken such other steps in connection with as required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the redemption of the 2009 Notes as the General Administrative Agent may reasonably requirePatriot Act; and
(vii) If the General Administrative Agent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and any Tranche B-5 Term Loan Lender has provided its electronic delivery requirements, such Lender requesting a Beneficial Ownership Certification in writing to the Borrower at least 10 days prior to the Amendment No. 9 Effective Date shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect prior to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant Amendment No. 9 Effective Date, a Beneficial Ownership Certification in relation to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Borrower.
Appears in 1 contract
Sources: First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Conditions to Effectiveness of Amendment. This 3.1 The effectiveness of the amendments set forth in Sections 1 and 2 of this Amendment shall become effective on No. 3 is subject to the date (the “First Amendment Effective Date”) on which all prior or simultaneous fulfillment of the following conditions precedent have been satisfied on or waivedbefore 4:00 P.M. New York City time on April 27, 2000:
(ia) the General Administrative The Agent shall have received a counterpart of this Amendment, Amendment No. 3 executed and delivered by (i) a duly authorized officer or officers of the U.S. BorrowerCompany and (ii) the Required Lenders;
(b) The Agent shall have received such other documents as it shall have reasonably requested consistent with the terms hereof;
(c) Holders of Indebtedness under any Covenant Credit Facility shall have executed, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause each such Covenant Credit Facility, waivers or amendments to such credit facilities satisfactory to the Agent and the Required Lenders (vii) below; provided that any Lender may signify its consent containing amendments to the covenants and related definitions in such credit facilities identical to those set forth in Section 1 of this Amendment No. 3 and (ii) containing agreements by instead executing a “lender addendum” in a form as provided such holders to (A) waive compliance by the Administrative AgentCompany or any of its Subsidiaries with, or amend, any provision of any instrument, document or agreement evidencing such Indebtedness requiring the sharing of any collateral securing the Liquidity Loans and (B) waive any default or event of default currently existing or occurring as a result of (x) the incurrence by the Company of Indebtedness under the Liquidity Loan subfacility, (y) the Guarantee by the Guarantors of the obligations of the Company in respect of the Liquidity Loans or (z) the granting of the liens and security interest to secure the obligations in respect of the Liquidity Loans and the obligations of the Subsidiary Guarantors under the Subsidiary Guarantee;
(iid) the General Administrative The Agent shall have received an executed Acknowledgment payment of all of its out-of-pocket expenses, including the reasonable fees and Consentexpenses of its counsel ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP incurred in the form set forth at the end of connection with this Amendment, from each Loan Party signatory theretoAmendment No. 3;
(iiie) The Agent shall have received the General Administrative arrangement fee due to the Agent pursuant to the agreement between the Agent and the Company;
(f) The Agent shall have received confirmation that the attorneys and accountants for the Steering Committee have received retainer payments of $500,000 in the aggregate;
(g) The Agent shall have received (ai) a non-refundable Subfacility fee, for distribution to each Term Lender which has delivered an executed counterpart the pro-rata benefit of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective DateLenders, an amendment fee equal to 1.00% $1,000,000 and (ii) a non-refundable amendment fee, for the pro-rata benefit of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior equal to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document$187,500;
(ivh) the General Administrative The Agent shall have received such certificates for deposit in the Disbursement Account and, if applicable, the Reserve Account the Net Cash Proceeds of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as any Permitted Disposition closed prior to the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment No. 3 Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireDate; and
(vii) The representations and warranties contained in the General Administrative Credit Agreement (other than the representations and warranties made as of a specific date) shall be true and correct in all material respects on and as of the Amendment No. 3 Effective Date, other than such exceptions as set forth on a disclosure certificate to be delivered to the Agent shall have received evidence reasonably satisfactory to it by the Company on or before the Amendment No. 3 Effective Date so long as such exceptions do not disclose the occurrence of a Material Adverse Change since the date of the Projections.
3.2 The date on which the conditions set forth in Section 3.1 are satisfied is the "AMENDMENT NO. 3 EFFECTIVE DATE" and until the conditions set forth in Section 3.1 are satisfied, the amendments set forth in Section 1 and 2 of this Amendment No. 3 are not effective. In the event that the aggregate principal amount conditions set forth in Section 3.1 have not been satisfied on or before 4:00 p.m. New York City time on April 27, 2000, this Amendment No. 3 shall terminate and shall be of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000no force or effect.
Appears in 1 contract
Sources: Credit Agreement (Ogden Corp)
Conditions to Effectiveness of Amendment. This The effectiveness of this Amendment shall become effective on is subject solely to the date (the “First Amendment Effective Date”) on which all satisfaction or waiver of each of the following conditions precedent have been (the “Amendment No. 10 Effective Date Conditions”; and the date on which such conditions are satisfied or waived:, the “Amendment No. 10 Effective Date”):
(a) The Administrative Agent shall have received (i) from each Existing Tranche B-5 Term Loan Lender with a Tranche B-6 Term Loan Commitment and from Additional Tranche B-6 Term Loan Lenders having Additional Tranche B-6 Term Loan Commitments equal in principal amount to the amount of Existing Tranche B-5 Term Loans held by Non-Consenting Existing Tranche B-5 Term Loan Lenders and Post-Closing Option Tranche B-6 Lenders, (ii) from the Administrative Agent, (iii) from the Required Lenders and (iv) from the Borrowers and each Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (including, for the avoidance of doubt, in each case of a Cashless Option Tranche B-6 Lender or Post-Closing Option Tranche B-6 Lender, an executed counterpart substantially in the form of Exhibit A hereto) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) The Borrowers shall have paid to all Existing Tranche B-5 Term Loan Lenders on the Amendment No. 10 Effective Date, substantially concurrently with the making of Tranche B-6 Term Loans under the Amended Credit Agreement, all accrued and unpaid interest on the Existing Tranche B-5 Term Loans to, but not including, the Amendment No. 10 Effective Date;
(c) The Administrative Agent shall have received the executed legal opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrowers and Morris, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇ LLP, as special Delaware counsel for the Borrowers. The Borrowers, the other Credit Parties and the Administrative Agent hereby instruct such counsel to deliver such legal opinions;
(d) The Borrowers shall have paid (i) the General Agents the fees in the amounts previously agreed in writing to be received on the Amendment No. 10 Effective Date, and (ii) the Administrative Agent and the Amendment No. 10 Arrangers, as applicable, all reasonable costs and expenses of the Administrative Agent and the Amendment No. 10 Arrangers, as applicable, for which invoices have been presented prior to the Amendment No. 10 Effective Date (including, without limitation, the reasonable and documented fees and out-of-pocket expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel for the Amendment No. 10 Arrangers and the Administrative Agent with respect thereto);
(e) The Administrative Agent (or its counsel) shall have received (i) (A) a certificate of each of Holdings and the Borrowers, dated the Amendment No. 10 Effective Date, substantially in the form of Exhibit G to the Credit Agreement, with appropriate insertions, executed by any Authorized Officer (or in the case of Holdings any Director or authorized agent of Holdings) and the Secretary or any Assistant Secretary of Holdings or the Borrowers (or in the case of Holdings any Director or authorized agent of Holdings), as applicable, and attaching the documents referred to in the following clause (B), and (B) (x) a copy of the resolutions of the board of directors or other managers of Holdings and the Borrowers (or a duly authorized committee thereof) authorizing (I) the execution, delivery, and performance of this Amendment (and any agreements relating thereto) to which it is a party and (II) in the case of the Borrowers, the extensions of credit contemplated hereunder, (y) the Certificate of Incorporation and By-Laws, Certificate of Formation and Operating Agreement or other comparable organizational documents, as applicable, of Holdings and the Borrowers and (z) signature and incumbency certificates (or other comparable documents evidencing the same) of the Authorized Officers of Holdings and the Borrowers executing the Credit Documents to which it is a party or (ii) a certificate of Holdings on behalf of each Borrower, dated the Amendment No. 10 Effective Date and executed by an Authorized Officer of Holdings, certifying that, except as otherwise indicated therein, there have been no amendments, supplements or modifications since the Closing Date to the documents delivered on the Closing Date pursuant to Sections 6.3 and 6.4 of the Credit Agreement;
(f) The Administrative Agent shall have received a counterpart Notice of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders Borrowing with respect to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Tranche B-6 Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably requireLoans; and
(vig) At the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount time of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (and immediately after giving effect to the minimum Revolving Credit Commitment Reduction Amendment, no Event of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Default under Section 2.6 11.1 or Section 11.5 of the Existing Credit Agreement shall have occurred and be continuing. Each Additional Tranche B-6 Term Loan Lender party hereto and each Cashless Option Tranche B-6 Lender and Post-Closing Option Tranche B-6 Lender by delivering its signature page to this Amendment or a Consent to Tenth Amendment Agreement, as applicable, and providing its applicable Commitment on the Amendment No. 10 Effective Date (as applicable), shall be deemed to have accepted or been satisfied with (or waived) each condition set forth in this Section 3. The Administrative Agent shall notify the Lenders of the Amendment No. 10 Effective Date upon the occurrence thereof, and such notice and the effectiveness of this Amendment and the Amended Credit Agreement shall be conclusive and binding upon all of the Lenders and all of the other parties to the Credit Documents and each of their successors and assigns; provided that, failure to give any such notice shall not affect the effectiveness, validity or enforceability of this Amendment or the Amended Credit Agreement) will be not less than $700,000,000. The parties hereto, and each Cashless Option Tranche B-6 Lender and Post-Closing Option Tranche B-6 Lender, hereby agree that notwithstanding any other provision hereof, the Amendment No. 10 Effective Date is January 22, 2024.
Appears in 1 contract
Sources: Credit Agreement (GoDaddy Inc.)
Conditions to Effectiveness of Amendment. This Amendment ---------------------------------------- shall become effective on the date later to occur of (the “First Amendment Effective Date”x) on which all of the following conditions precedent have been satisfied or waived:
May 15, 2001, and (iy) the General first day when the Administrative Agent shall have received a counterpart all of the following documents: (i) counterparts of this AmendmentAmendment as executed on behalf of Borrower and the Lenders, together with the Acknowledgment and Agreement of Subsidiary Guarantors as executed and delivered by a duly authorized officer on behalf of the U.S. BorrowerSubsidiary Guarantors, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, replacement Syndicated Note in favor of Comerica Bank (the form set forth at "Comerica Replacement -------------------- Note") reflecting the end of increase in its Commitment pursuant to this Amendment, from each Loan Party signatory thereto;
as ---- executed on behalf of Borrower, (iii) a certificate of Borrower signed by the General Administrative Agent shall have received (a) for distribution Secretary or an Assistant Secretary of Borrower, certifying as to each Term Lender which has delivered an executed counterpart the names, true signatures and incumbency of the officer or officers authorized to execute and deliver this Amendment and the Comerica Replacement Note, together with copies of the resolutions adopted by the board of directors of Borrower authorizing the execution, delivery and performance of this Amendment and the Comerica Replacement Note, and any amendments, supplements, or other changes to the General Administrative Agent on certificate of incorporation or prior to the First Amendment Effective Dateby-laws of Borrower since January 31, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders2001, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General favorable opinions of (A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel of Borrower, and (B) ▇▇▇▇▇▇ & Bird, LLP, special counsel for Borrower, covering matters relating to Borrower, this Amendment, the Comerica Replacement Note, and such other matters as the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent any Lender may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption request. The later of the 2009 Notes as dates in the General Administrative Agent may reasonably require; and
(vi) preceding sentence shall be the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First "Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.No. 2
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 1 Effective Date”) on which all of the following conditions precedent have been are satisfied or waived:
(a) The Administrative Agent shall have received from (i) each Lender and (ii) each Loan Party a duly executed counterpart of (or, in the General case of the Lenders, a consent to) this Amendment signed on behalf of such party (which may include facsimile or other electronic transmission of a signed signature page of this Amendment). Each Lender, by submitting a consent to the Pro Rata Extension Offer, dated April 16, 2020, has consented to this Amendment.
(b) The Administrative Agent shall have received from the Borrower the Extension Fee referenced in Section 1(c) hereof.
(c) The Administrative Agent shall have received a counterpart favorable written opinion of (i) P▇▇▇, Weiss, Rifkind, W▇▇▇▇▇▇ & G▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties, (ii) Walkers Bermuda, Bermuda counsel for the Loan Parties and (iii) C▇▇▇▇ & Co., US maritime counsel for the Loan Parties, in each case (A) dated the Amendment No. 1 Effective Date, (B) addressed to each Issuing Bank, the Administrative Agent, the Collateral Agent and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(d) The Borrower shall have paid (i) all reasonable, documented and invoiced fees payable to the Administrative Agent or any affiliate thereof as agreed between the Administrative Agent and the Borrower and (ii) all reasonable fees, expenses and disbursements of C▇▇▇▇▇, ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, as counsel for the Administrative Agent, incurred in connection with the preparation, negotiation and execution of this Amendment to the extent invoiced at least three (3) Business Days prior to the date hereof, subject to any fee cap set forth in the Engagement Letter, dated as of April 16, 2020, among the Company and the Administrative Agent.
(i) On and as of the Amendment No. 1 Effective Date, both immediately before and immediately after giving effect to this Amendment, executed the representations and delivered by a duly authorized officer warranties of the U.S. Borrower, the Borrower and each other Borrowers, the Majority Lenders Loan Party set forth in Section 2 hereof shall be true and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” correct in a form as provided by the Administrative Agent;
all material respects and (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in a certificate from a Responsible Officer of the form Borrower certifying as to the matters set forth at the end of this Amendment, from each Loan Party signatory thereto;in Section 2 hereof.
(iiif) the General The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Amendment No. 1 Effective Date and certifying:
(ai) for distribution to each Term Lender which has delivered a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (1) if available from an executed counterpart official in such jurisdiction, certified as of this Amendment a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the General Administrative Agent good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on or the Amendment No. 1 Effective Date and at all times since a date prior to the First Amendment Effective Date, an amendment fee equal to 1.00% date of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date resolutions de-scribed in clause (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretioniv) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;below,
(iv) the General Administrative Agent shall have received such certificates that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or other action, incumbency certificates and/or other certificates equivalent governing body) of Responsible Officers of each such Loan Party as (or its managing general partner or managing member) authorizing the General Administrative Agent may reasonably require evidencing execution, delivery and performance of the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents dated as of the Amendment No. 1 Effective Date to which such Loan Party person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or is to be a party;amended and are in full force and effect on the Amendment No. 1 Effective Date,
(v) as to the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date incumbency and has taken such specimen signature of each officer executing any Loan Document or any other steps document delivered in connection with the redemption herewith on behalf of the 2009 Notes as the General Administrative Agent may reasonably require; andsuch Loan Party,
(vi) as to the General absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party, and
(vii) such other documents as the Administrative Agent and the Lenders on the Amendment No. 1 Effective Date may reasonably request (including tax identification numbers and addresses).
(g) The Lenders shall have received evidence reasonably satisfactory a solvency certificate substantially in the form of Exhibit C to it that the aggregate principal amount Credit Agreement and signed by a Financial Officer of the Tranche A U.S. Revolving Credit Commitments Borrower confirming the solvency of the Borrower and its Subsidiaries on the First Amendment Effective Date (a consolidated basis, in each case, after giving effect to this Amendment on the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.Amendment No. 1
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on when and only when the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority LendersLenders and the following conditions precedent have been satisfied (the date such conditions are so satisfied herein called the “Effective Date”):
(a) The Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance satisfactory to the Agent and in such number of counterparts as determined may be requested by the General Agent: [FOURTH AMENDMENT TO EIGHTH AMENDED AND RESTATED CREDIT AGREEMENT]
(i) counterparts of the Amendment Documents executed by the applicable Loan Parties sufficient in number for distribution to the Administrative Agent in its sole discretionand the Borrower.
(ii) and (b) all other fees and amounts due and payable a certificate on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements behalf of counsel) required to be reimbursed or paid by any each applicable Loan Party hereunder or under any (other Loan Document;
(ivthan Appalachia and Louisiana) certifying that none of the General Administrative Agent shall have received such certificates of resolutions or other actionresolutions, incumbency certificates certificates, Organization Documents and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party have been amended or is are otherwise inaccurate since they were delivered and certifying resolutions authorizing this Amendment.
(iii) a certificate of each of Appalachia and Louisiana, dated the Effective Date, substantially in the form of Exhibit C to be the Original Agreement, with appropriate insertions and attachments and evidencing, among other things, the power and authority of each such Person to assume the Obligations under the Credit Agreement as a party;borrower.
(iv) an amended and restated Guarantee Agreement, in form and substance satisfactory to the Agent, executed and delivered by the Company, the Borrower and each Subsidiary Guarantor.
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption replacement promissory notes of the 2009 Notes Borrower evidencing the Revolving Loans of each Lender, substantially in the form of Exhibit H to the Original Agreement, with appropriate insertions as the General Administrative Agent may reasonably require; andto date and principal amount.
(vi) such other documents or certificates as the General Administrative Agent shall reasonably request.
(b) Any fees required to be paid to the Agent or any Lender on or before the Effective Date shall have received evidence reasonably satisfactory been paid.
(c) Unless waived by the Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to it that the aggregate principal amount of Agent to the Tranche A U.S. Revolving Credit Commitments extent invoiced prior to or on the First Amendment Effective Date Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (after giving effect to provided that such estimate shall not thereafter preclude a final settling of accounts between the minimum Revolving Credit Commitment Reduction of 33.33% Borrower and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.Agent). [FOURTH AMENDMENT TO EIGHTH AMENDED AND RESTATED CREDIT AGREEMENT]
Appears in 1 contract
Conditions to Effectiveness of Amendment. This The Bank’s willingness to agree to the amendments set forth in this Amendment shall become effective on is subject to the date (the “First Amendment Effective Date”) on which all prior satisfaction of the following conditions precedent have been satisfied or waivedconditions:
(i) 1. Execution by all parties and delivery to the General Administrative Agent shall have received a counterpart Bank of this Amendment, executed including the attached Consent of Guarantor, the Restated Note, and delivered by an Incumbency Certificate. MEDPACE INTERMEDIATECO, INC., a duly authorized officer Delaware corporation (the “Guarantor”) consents to the provisions of the U.S. Borrowerforegoing Amendment No. 9 to Loan Documents (the “Amendment”) and all prior amendments (if any) and confirms and agrees that: (a) the Guarantor’s obligations under its Guaranty Agreement dated as of September 30, 2019 (the “Guaranty”), relating to the Obligations referenced in the Amendment, shall be unimpaired by the Amendment; (b) the Guarantor has no defenses, set offs, counterclaims, discounts or charges of any kind against the Bank, its officers, directors, employees, agents or attorneys with respect to the Guaranty; and (c) all of the terms, conditions and covenants in the Guaranty remain unaltered and in full force and effect and are hereby ratified and confirmed and apply to the Obligations, as modified by the Amendment. The Guarantor certifies that all representations and warranties made in the Guaranty are true and correct. The Guarantor hereby confirms that any collateral for the Obligations, including liens, security interests, mortgages, and pledges granted by the Guarantor or third parties (if applicable), shall continue unimpaired and in full force and effect, shall cover and secure all of the Guarantor’s existing and future Obligations to the Bank, as modified by this Amendment. By signing below, the Guarantor agrees that this Consent, the Guaranty, the other BorrowersLoan Documents, the Majority Lenders any amendments thereto and Extending Lenders to the extent required by clause any other information, notice, signature card, agreement or authorization related thereto (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing each, a “lender addendum” in a form as provided by Communication”) may, at the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and ConsentBank’s option, be in the form set forth of an electronic record. Any Communication may, at the end Bank’s option, be signed or executed using electronic signatures. For the avoidance of doubt, the authorization under this Amendmentparagraph may include, from each Loan Party signatory thereto;
without limitation, use or acceptance by the Bank of a manually signed paper Communication which has been converted into electronic form (iii) the General Administrative Agent shall have received (asuch as scanned into PDF format) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Datetransmission, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed delivery and/or retention. The Guarantor acknowledges and agrees that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date methods for which invoices have been presenteddelivering Communications, including all reasonable out-of-pocket expenses (including reasonable feesnotices, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Guaranty and the other Loan Documents include electronic transmittal to which such Loan Party is a any electronic address provided by any party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant other party from time to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000time.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment No. 7 Effective Date”) on which all of that the following conditions precedent have been satisfied or waivedsatisfied:
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of each Loan Party (as defined in the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative AgentExisting Term Loan Agreement);
(iib) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (ai) for distribution Consents from Lenders constituting Replacement 2018 Term B-7 Lenders and/or (ii) executed Joinders, each entered into by an Additional 2018 Term B-7 Lender, Holdings and the Borrowers, and acknowledged by the Agent;
(c) the Agent shall have received a customary legal opinion (including no conflicts with all indentures and other material debt documents of the Parent Borrower and its subsidiaries) (i) from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (ii) from ▇▇▇▇▇▇▇▇▇ Traurig LLP, California, Illinois, Massachusetts, and Texas counsel to the Loan Parties, in each case addressed to the Agent and the Lenders;
(d) the Agent shall have received (i) a copy of the certificate or articles of incorporation or organization, including all amendments thereto, of each Loan Party, certified, if applicable, as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing (where relevant) of each Loan Party as of a recent date, from such Secretary of State or similar Governmental Authority (as defined in the Existing Term Lender which has delivered an executed counterpart Loan Agreement) and (ii) a certificate of a duly authorized officer of each Loan Party dated the Amendment No. 7 Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or operating (or limited liability company) agreement of such Loan Party as in effect on the Amendment No. 7 Effective Date or, if applicable, that no modifications have been made to such documents since June 27, 2017, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Loan Party authorizing the execution, delivery and performance of this Amendment and, in the case of the Borrowers, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the General Administrative Agent incumbency and specimen signature of each officer executing this Amendment on or prior behalf of such Loan Party and countersigned by another officer as to the First incumbency and specimen signature of a duly authorized officer executing the certificate pursuant to clause (ii) above;
(e) the Agent shall have received a certificate of an authorized officer of the Parent Borrower dated the Amendment No. 7 Effective Date certifying that (i) each of the representations and warranties made by any Loan Party in or pursuant to the Financing Agreements shall be, after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Amendment No. 7 Effective Date, except to the extent such representations and warranties expressly relate to an amendment fee equal to 1.00% earlier time, in which case such representations and warranties were true and correct in all material respects as of such earlier time; provided that to the extent any such representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty is true and correct in all respects; provided, further, that each reference to the Existing Term Lender’s outstanding Loan Agreement therein shall be deemed to be a reference to the Existing Term Loan Agreement after giving effect to this Amendment; (ii) after giving effect to this Amendment, no Default or Event of Default (each as defined in the Existing Term Loan Agreement) shall have occurred and be continuing and (iii) no event shall have occurred and no condition shall exist that has or may be reasonably to be likely to have a Material Adverse Effect (as defined in the Existing Term Loan Agreement);
(f) the Parent Borrower shall have paid (or have caused to be paid), (i) to the Amendment No. 7 Arrangers (as defined below) in immediately available funds, all fees owing to the Amendment No. 7 Arrangers in connection with arranging Term Loans on (as defined in the First Existing Term Loan Agreement) as separately agreed to in writing by Holdings and the Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) No. 7 Arrangers and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presentedextent invoiced, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges of the Amendment No. 7 Arrangers and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby (but limited, in the case of legal fees and expenses, to which such Loan Party is a party or is to be a partythe reasonable and documented fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP);
(vg) subject to subsection (e) above, the General Administrative Agent conditions precedent set forth in Section 4.2 of the Existing Term Loan Agreement shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date been satisfied both before and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction borrowing of 33.33% Replacement 2018 Term B-7 Loans;
(h) the Agent shall have received a solvency certificate signed by the Chief Financial Officer of Holdings substantially in the form attached as Exhibit O to the Existing Term Loan Agreement;
(i) if requested by the Agent, the Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens (as defined in the Existing Term Loan Agreement) on the assets of the Loan Parties, except for Permitted Liens (as defined in the Existing Term Loan Agreement) and Liens for which termination statements and releases, satisfactions and releases or subordination agreements satisfactory to the Agent are being tendered concurrently with the Amendment No. 7 Effective Date or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(j) the Agent shall have received a Committed Loan Notice (as defined in the Existing Term Loan Agreement) for the Replacement 2018 Term B-7 Loans;
(k) the Agent shall have received, at least five (5) Business Days (as defined in the Existing Term Loan Agreement) prior to the Amendment No. 7 Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the PATRIOT Act, that has been reasonably requested by the Lenders at least ten (10) Business Days prior to the Amendment No. 7 Effective Date;
(l) to the extent any simultaneous addition Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”) and at least five (5) Business Days prior to the Amendment No. 7 Effective Date, such Borrower shall deliver to each Lender that so requests (which request is made through the Agent), a certification regarding beneficial ownership required by the Beneficial Ownership Regulation (the “Beneficial Ownership Certification”) in relation to such Borrower; provided that the Agent has provided such Borrower a list of each such Lender and its electronic delivery requirements at least ten (10) Business Days prior to the Amendment No. 7 Effective Date;
(m) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (as defined in the Existing Term Loan Agreement), and to the extent any new U.S. Revolving Lenders pursuant to Mortgaged Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto, and (ii) evidence of flood insurance as required by Section 2.6 9.4 of the Existing Credit Term Loan Agreement and the applicable provisions of the Collateral Documents (as defined in the Existing Term Loan Agreement); and
(n) will be not less than $700,000,000the Paydown shall have been consummated prior to or substantially concurrently with the effectiveness of this Amendment.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Section 3 of this Amendment shall become effective on as of the date (the “First Second Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(ia) the General The Administrative Agent (or its counsel) shall have received (i) a counterpart of this Amendment, duly executed and delivered by completed counterpart hereof that bears the signature of the Borrower and each other Loan Party, (ii) a duly authorized officer executed and completed counterpart hereof that bears the signature of the U.S. Borrower, Administrative Agent and (iii) a duly executed and completed counterpart hereof that bears the other Borrowers, signature of each of the Majority Lenders party hereto (comprising the Required Lenders) and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenteach Incremental Revolving Lender;
(iib) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, Confirmation in the form set forth at the end of this Amendment, Annex I hereto from an authorized officer of each Loan Party signatory theretoParty;
(iiic) the General The Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart reimbursement of this Amendment reasonable and documented out of pocket expenses (to the General Administrative Agent on or extent invoiced no later than three Business Days prior to the First Second Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement, (ii) on behalf of itself, BMO Capital Markets Corp., as lead arranger, and each Lender consenting to which this Amendment, the fees owed to it, BMO Capital Markets Corp. and/or such Loan Party Lender pursuant to that certain mandate letter, dated as of March 31, 2020, between the Borrower and BMO Capital Markets Corp. and (iii) on behalf of each Lender, all accrued interest on outstanding Loans on the Second Amendment Effective Date and, if such Lender is a party Revolving Lender, all commitment fees and participation fees payable under Section 2.12 of the Credit Agreement, whether or is to be a partynot any such amounts are then due and payable;
(vd) the General The Administrative Agent shall have received evidence a certificate of each Loan Party, dated as of the Second Amendment Effective Date, in form and substance reasonably satisfactory acceptable to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching a copy of (i) each Organizational Document of each Loan Party, certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing this Amendment, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the Loan Documents to which it that is a party, in each case, certified as of the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Second Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and has taken effect without modification or amendment, and (iv) a good standing certificate (to the extent such other steps in connection with concept exists) from the redemption applicable Governmental Authority of the 2009 Notes each Loan Party’s jurisdiction of incorporation, organization or formation, as the General Administrative Agent may reasonably require; andapplicable;
(vie) the General The Administrative Agent shall have received evidence a certificate of the chief financial officer or treasurer (or other comparable officer) of Holdings certifying the solvency, after giving effect to this Amendment, of Holdings and its Subsidiaries on a consolidated basis in substantially the form of Exhibit E to the Amended Credit Agreement;
(f) The Administrative Agent shall have received the executed legal opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the Second Amendment Effective Date) of (i) ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, and (ii) ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Georgia counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to it that the aggregate principal amount of Administrative Agent;
(g) The Administrative Agent shall have received at least two (2) Business Days prior to the Tranche A U.S. Revolving Credit Commitments on the First Second Amendment Effective Date all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least five (5) Business Days prior to the Second Amendment Effective Date by the Administrative Agent required by regulatory authorities under applicable Anti-Money Laundering Laws, including the USA PATRIOT Act and other “know your customer” rules and regulations; and
(i) Section 2.20(a)(A) shall be satisfied with respect to the Incremental Revolving Commitment, (ii) the Borrower shall be in compliance on a Pro Forma Basis (both before and after giving effect to the minimum Incremental Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 actual drawings thereunder on the Second Amendment Effective Date) with the Financial Performance Covenant as of the Existing Credit Agreementlast day of the most recently ended Test Period (with any proceeds of the Incremental Revolving Commitment and any Cure Amounts to be excluded for purposes of the cash component of the Total Net Leverage Ratio) will be not less than $700,000,000and (iii) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (i) and (ii) above, together with reasonably detailed calculations demonstrating compliance with clause (ii) above.
Appears in 1 contract
Sources: Credit Agreement (Blue Bird Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(a) The Administrative Agent shall have received (i) from each Tranche B-1 Term Lender with a Tranche B-2 Term Exchange Commitment and from Post-Closing Option Lenders having Additional Tranche B-2 Term Commitments equal in principal amount to the General amount of Tranche B-1 Term Loans held by Non-Exchanging Term Lenders, (ii) from the Administrative Agent and (iii) from the Borrower and each Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (or a Consent) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received executed Consents from the Required Lenders.
(c) The Administrative Agent shall have received from each Additional Tranche B-2 Term Lender (other than Post-Closing Option Lenders) an executed counterpart to the applicable Joinder Agreement.
(d) The Borrower shall have paid to all Tranche B-1 Term Lenders on the Amendment No. 2 Effective Date, simultaneously with the making of Tranche B-2 Term Loans under the Credit Agreement, all accrued and unpaid interest on their Tranche B-1 Term Loans to, but not including, the Amendment No. 2 Effective Date.
(e) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders written opinion (addressed to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;, the Lenders and the Issuing Banks and dated the Amendment No. 2 Effective Date) of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, New York counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent. Each of Holdings and the Borrower hereby requests such counsel to deliver such opinions.
(f) The Borrower shall have paid (i) the Joint Bookrunners the fees in the amounts previously agreed in writing to be received on the Amendment No. 2 Effective Date and (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses of the Administrative Agent (including including, without limitation the reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Administrative Agent) required for which invoices have been presented at least three Business Days prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;the Amendment No. 2 Effective Date.
(ivg) At the General time of and immediately after giving effect to this Amendment no Default or Event of Default shall have occurred and be continuing.
(h) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority (in relation to a Loan Party constituted under German law not older than 14 days and certified by the relevant commercial register) and in relation to a Luxembourg Loan Party an up-to-date excerpt from the Luxembourg Register in respect of the Luxembourg Loan Party as of the date of this Amendment and a certificate from the Luxembourg Register dated as at the date hereof stating that no judicial decision has been registered with the Luxembourg Register by application of article 13, items 2 to 11 and 13 and article 14 of the RCS Law, according to which the Luxembourg Loan Party would be subject to one of the judicial proceedings referred to in these provisions of the RCS Law including in particular, bankruptcy (faillite), controlled management (gestion contrôlée), suspension of payments (sursis de paiement), arrangement with creditors (concordat préventif de la faillite) and judicial liquidation (liquidation judiciaire) proceedings, (ii) signature and, to the extent such certificates of resolutions or other actionconcept exists, incumbency certificates and/or other certificates of the Responsible Officers of each Loan Party as executing the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such it is a party, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party party, setting out, in respect of each Belgian Loan Party, the reasons why the board of directors of that Belgian Loan Party considered that the entry into this Amendment, is of the benefit to that Loan Party, certified as of the Amendment No. 2 Effective Date by its secretary, an assistant secretary or is a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to be a party;the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(vi) To the General extent required and requested by any Additional Tranche B-2 Term Lenders at least three Business Days prior to the Amendment No. 2 Effective Date, the Administrative Agent shall have received evidence all documentation and other information about the Loan Parties as shall have been requested in writing by such Additional Tranche B-2 Term Lenders that they shall have reasonably satisfactory to it that determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andUSA Patriot Act.
(vij) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate signed by a Responsible Officer of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect Borrower certifying as to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 accuracy of the Existing Credit Agreementrepresentations set forth in paragraphs (b) will be not less than $700,000,000and (c) of Section 2 hereof.
(k) The Administrative Agent shall have received a Consent to this Amendment from each Revolving Lender.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent (such date, the “Sixth Amendment Effective Date”):
a. the Borrower Representative, each other Loan Party (other than Loan Parties incorporated in Korea) and the New Term Lenders shall have been satisfied executed and delivered counterparts (or, as applicable, a Lender Consent or waived:a Joinder) to this Amendment to the Administrative Agent;
b. each of the representations and warranties contained in Section 10 of this Amendment shall be true and correct in all material respects (iand in all respects if any such representation or warranty is already qualified by materiality) on and as of the General Sixth Amendment Effective Date;
c. at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Sixth Amendment Effective Date, no Default or Event of Default exists;
d. the Administrative Agent shall have received a counterpart of this Amendment, executed certificate dated the Sixth Amendment Effective Date and delivered signed by a duly authorized officer Responsible Officer of the U.S. BorrowerBorrower Representative, confirming compliance with the other Borrowersconditions set forth in Sections 7(b) and 7(c) hereof, confirming that the Majority Lenders applicable conditions under Section 2.18(a) and Extending Lenders Section 4.02 of the Existing Credit Agreement are satisfied in respect to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided Refinancing Term Loans and appending the resolutions adopted by the Administrative AgentBorrowers approving the Refinancing Term Loans;
(ii) e. the General Administrative Agent shall have received an executed Acknowledgment and Consent, a solvency certificate dated as of the Sixth Amendment Effective Date in substantially the form of Exhibit H of the Amended Credit Agreement from a Financial Officer of the Parent certifying as to the matters set forth at therein;
f. the end Administrative Agent shall have received, on behalf of itself and the Lenders on the Sixth Amendment Effective Date, a customary written opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for the Parent, the Borrowers and each other Loan Party (A) dated the Sixth Amendment Effective Date, (B) addressed to the Administrative Agent, the Amendment Arrangers and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and the Amendment Arrangers covering such matters relating to this Amendment, from each Loan Party signatory thereto;
(iii) a. the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this ▇▇▇▇▇▇▇ Sachs Bank USA, in its capacity as Amendment Arranger, all fees and expenses agreed to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts Borrowers or the Borrower Representative that are due and payable on or prior to before the First Sixth Amendment Effective Date for which invoices have been presented, (including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges expenses and disbursements of legal counsel) required in each case to be reimbursed or paid by any Loan Party hereunder or under any other Loan Documentthe extent notified to the Borrower Representative at least three (3) Business Days prior to the Sixth Amendment Effective Date;
(iv) b. the General Administrative Agent Term Borrowers shall have received such certificates of resolutions or other actionapplied, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection concurrently with the redemption exchange of the 2009 Notes as Exchanged Term Loans with Refinancing Term Loans, the General Administrative Agent may reasonably require; and
Net Proceeds of the Refinancing Term Loans (vi) if any), together with cash on hand, to prepay in full the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate outstanding principal amount of all Non-Exchanged Term Loans, to pay accrued and unpaid interest payable on all Existing Term Loans to (and excluding) the Tranche A U.S. Revolving Credit Commitments Sixth Amendment Effective Date, and (if applicable) to pay amounts owing on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Non-Exchanged Term Loans under Section 2.6 3.06 of the Existing Credit Agreement) will be not less than $700,000,000, in each case as of the Sixth Amendment Effective Date.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective as of the date first above written (the "EFFECTIVE DATE") on the date (the “First Amendment Effective Date”) on which all of first day when the following conditions precedent have been satisfied or waivedsatisfied:
(ia) This Amendment shall have been executed and delivered by Borrower, the General Administrative Lenders, the Agent and the Co-Agent;
(b) Borrower shall have executed and delivered to the Lenders a letter agreement pursuant to which Borrower shall have agreed to enter into an amendment and supplement to the Warrant Agreement dated as of July 31, 1996 among Vari-Lite International, Inc. and certain of the Lenders, providing for reductions in the exercise price of the common stock purchase warrants issued pursuant to the terms of such Warrant Agreement, and the issuance of additional common stock purchase warrants to Chase Bank of Texas, N.A., in form and substance satisfactory to the Lenders;
(c) The Agent shall have received a counterpart certificate of the Secretary or Assistant Secretary of Borrower attaching and certifying copies of the resolutions of the board of directors of Borrower authorizing the execution, delivery and performance of this Amendment and all other documents to be executed and delivered by Borrower pursuant to the terms of this Amendment;
(d) The Agent shall have received a certificate of Borrower dated as of the date hereof, signed by the Secretary or an Assistant Secretary of Borrower certifying (i) as to the name(s), true signature(s) and incumbency of the officer(s) of Borrower authorized to execute and deliver this Amendment and each other document being executed and delivered pursuant to the requirements of this Amendment, executed and delivered by a duly authorized officer (ii) that Borrower's articles or certificate of incorporation and by-laws attached to such certificate have not been amended or modified and are in full force and effect as of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agentdate hereof;
(iie) the General Administrative The Agent shall have received an executed Acknowledgment the favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., counsel to Borrower, addressed to the Agents and Consentthe Lenders, in covering such matters relating to Borrower and the form set forth at transactions contemplated by this Amendment as the end of this Amendment, from each Loan Party signatory thereto;Lenders may request; and
(iiif) the General Administrative The Agent shall have received (a) payment in full from Borrower for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s all outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) costs and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be paid or reimbursed or paid by any Loan Party hereunder or Borrower under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000, including without limitation, all professional fees and expenses of counsel for the Agents.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Fourth Amendment Effective Date”) on which all upon satisfaction of the following conditions precedent in a manner satisfactory to the Administrative Agent and the Lenders:
(a) The Administrative Agent shall have been satisfied received executed counterparts of the following documents and instruments or waivedsuch other items as are described below, as the case maybe, each in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) the General Administrative Agent shall have received a counterpart of this Amendment, duly executed and delivered by a duly authorized officer of the U.S. Borrower, the other BorrowersCredit Parties, the Majority Lenders Administrative Agent and Extending Lenders each of the Lenders;
(ii) amended and restated Schedules 1.1, 3.15, 3.18, 3.19, 3.23(b)-(j), 4.14, 5.1, 5.4, 5.5, 5.9 and P-1 to the extent required Existing Credit Agreement;
(iii) the duly executed amendment to the Benchmark Subordination Agreement;
(iv) a duly executed Control Agreement for all accounts maintained with Bank of America, N.A.;
(v) a fee agreement, duly executed and delivered by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Borrower and the Administrative Agent;
(iivi) the General Approved Budget, certified by a Responsible Officer of the Borrower, certifying that the projections therein have been prepared in good faith based on reasonable assumptions, and that such projections contain no statements or conclusions (and there are no omissions of information) which are based upon or include information known to the Credit Parties to be misleading in any material respect or which fail to take into account information known to the Credit Parties regarding materials reported therein;
(vii) the most recently available audited consolidated balance sheet of Holdings and its Subsidiaries, and the related audited consolidated statements of income or operations, shareholders’ equity and cash flows for the corresponding period;
(viii) the Perfection Certificate;
(ix) copies of UCC, United States Patent and Trademark Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Credit Party as debtor and that are filed in those state and county jurisdictions in which any property of any Credit Party is located and the state and county jurisdictions in which any Credit Party is organized or maintains its principal place of business and such other searches that the Administrative Agent shall have received deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(x) a legal opinion from (a) G▇▇▇▇▇▇ P▇▇▇▇▇▇ LLP, designated transactional counsel to the Credit Parties and (b) T▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & Hollister LLP and S▇▇▇▇ & W▇▇▇▇▇ L.L.P., local Indiana and Nevada counsel to the Credit Parties, respectively;
(xi) customary insurance certificates and endorsements thereto naming the Administrative Agent (on behalf of the Lenders) as an executed Acknowledgment additional insured or loss payee (and Consentmortgagee), as the case may be, under all insurance policies to be maintained with respect to the properties of the Credit Parties forming part of the Collateral; provided, in the form set forth at event such certificates and endorsements are not provided on the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Fourth Amendment Effective Date, an amendment fee equal to 1.00% the Borrower shall provide such certificates and endorsements in accordance with Schedule 4.14 of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan DocumentCredit Agreement;
(ivxii) the General Administrative Agent shall have received such certificates a certificate of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with of each Credit Party dated the Fourth Amendment Effective Date, certifying (A) that attached thereto is (1) a true and complete copy of a certificate as to the good standing of each Credit Party, as of a recent date, from such Secretary of State of the state of its organization (or other applicable Governmental Authority to the extent available), (2) a true and complete copy of each Organization Document of such Credit Party, and (3) is a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of such Credit Party authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which such Loan Credit Party is a party and, in the case of Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or is amended and are in full force and effect, and (B) as to be the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Credit Party (together with a partycertificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate in this clause (xii);
(vxiii) a certificate signed by a Responsible Officer of the General Administrative Agent shall have received evidence reasonably satisfactory to it that Borrower dated the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Fourth Amendment Effective Date certifying (I) no Default or Event of Default exists, (II) all representations and has taken warranties of each Credit Party set forth in the Loan Documents are true and correct, and (III) all other conditions set forth in this Section 4 have been satisfied;
(xiv) a Loan Request;
(xv) the Sacramone Note;
(xvi) a new or amended employment agreement by and between F▇▇▇ ▇▇▇▇▇▇▇▇▇ and Benchmark;
(xvii) a new or amended employment agreement by and between B▇▇▇▇ ▇▇▇▇▇▇▇ and Benchmark;
(xviii) a solvency certificate from the chief executive officer or chief financial officer of Holdings in substantially the form of Exhibit 2.1(c) to the Credit Agreement;
(xix) a trademark security agreement executed by Crosslayer, Inc.;
(xx) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of Liens granted under the Guaranty and Security Agreement, as requested by the Administrative Agent in order to perfect such Liens, duly authorized by the Credit Parties; and
(xxi) such other steps additional documents, information or agreements as the Administrative Agent may reasonably request.
(b) The Fourth Amendment Lateral Stock shall have been issued by Holdings.
(c) The Borrower shall have appointed a chief restructuring officer on terms (including, without limitation, scope of duties) acceptable to the Lenders in their reasonable discretion.
(d) All fees and other amounts due and payable hereunder or under the Credit Agreement (including without limitation the reasonable and documented fees and expenses of King & Spalding LLP) on or prior to the Fourth Amendment Effective Date, including, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or any other Loan Document.
(e) There shall not exist any judgment, decree or order of any Governmental Authority which would prevent the performance of this Amendment, the Credit Agreement (as modified hereby) or the transactions contemplated hereby or declare unlawful this Amendment or the other transactions contemplated hereby.
(f) The representations and warranties set forth in Section 5 of this Amendment shall be true and correct in all material respects on and as of the Fourth Amendment Effective Date.
(g) The Administrative Agent and Lenders shall have satisfactorily completed their business and legal due diligence review of the Credit Parties and their assets, including their review with respect to the general affairs, management, prospects, financial position, stockholders equity, results of operations, corporate and capital structure of Holdings and its Subsidiaries, and tax and accounting diligence, including with respect to the potentially accrued and unpaid payroll tax liability of the Credit Parties. Other than changes occurring in the ordinary course of business, no information or materials are or should have been available to any Credit Parties and their Subsidiaries as of the Fourth Amendment Effective Date that are materially inconsistent with the material previously provided to the Administrative Agent and Lenders for their due diligence review of the Credit Parties.
(h) All other documents and legal matters in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent transactions contemplated by this Amendment shall have received evidence reasonably been delivered or executed or recorded and shall be in form and substance satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Administrative Agent.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Section 3 of this Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(ia) the General The Administrative Agent (or its counsel) shall have received (i) a counterpart of this Amendment, duly executed and delivered by completed counterpart hereof that bears the signature of the Borrower and each other Loan Party, (ii) a duly authorized officer executed and completed counterpart hereof that bears the signature of the U.S. BorrowerAdministrative Agent and (iii) a duly executed and completed counterpart hereof that bears the signature of each of the Lenders, the other Borrowers, the Majority Supplemental Term Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agenteach Issuing Bank;
(iib) the General The Administrative Agent shall have received an executed Acknowledgment and Consent, Confirmation in the form set forth at the end of this Amendment, Annex I hereto from an authorized officer of each Loan Party signatory theretoParty;
(iiic) the General The Administrative Agent shall have received (ai) for distribution to each Term Lender which has delivered an executed counterpart reimbursement of this Amendment reasonable and documented out of pocket expenses (to the General Administrative Agent on or extent invoiced no later than three Business Days prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents transactions contemplated hereby in accordance with Section 9.03 of the Credit Agreement, (ii) on behalf of itself, BMO Capital Markets Corp., as lead arranger, and each Lender consenting to which this Amendment, the fees owed to it, BMO Capital Markets Corp. and/or such Loan Party is a party or is Lender pursuant to be a party;
that certain mandate letter, dated as of August 24, 2018, between the Borrower and BMO Capital Markets Corp. and (viii) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem on behalf of each Lender, all 2009 Notes accrued interest on outstanding Loans on the First Amendment Effective Date and, if such Lender is a Revolving Lender, all commitment fees and has taken such other steps in connection with the redemption participation fees payable under Section 2.12 of the 2009 Notes as the General Administrative Agent may reasonably require; andCredit Agreement, whether or not any such amounts are then due and payable;
(vid) No Event of Default or Default shall have occurred and be continuing both before and after giving effect to the General transactions contemplated by this Amendment, including the funding of the Supplemental Term Loans;
(e) The Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate signed by a Responsible Officer of the Tranche A U.S. Borrower, certifying on behalf of the Borrower that, (i) after giving effect to this Amendment, to the Supplemental Revolving Commitments, to the Supplemental Term Loans (assuming such Supplemental Term Loans have been fully funded on the First Amendment Effective Date) and to any other Loans or other extensions of credit to be made to the Borrower on the First Amendment Effective Date, the representations and warranties set forth in the Amended Credit Commitments Agreement and the other Loan Documents are true and correct in all material respects (or, to the extent such representations and warranties are qualified by materiality, in all respects) on and as of the First Amendment Effective Date (except to the extent such representation and warranty speaks to an earlier date, in which case such representation and warranty is true and correct in all material respects (or, to the extent such representations and warranties are qualified by materiality, in all respects) on and as of such earlier date), and (ii) no Default or Event of Default has occurred and is continuing on the First Amendment Effective Date (both before and after giving effect to this Amendment, to the minimum Supplemental Revolving Commitments, to the Supplemental Term Loans (assuming such Supplemental Term Loans have been fully funded on the First Amendment Effective Date) and to any other Loans or extensions of credit to be made to the Borrower on the First Amendment Effective Date;
(f) The Administrative Agent shall have received a certificate of each Loan Party, dated as of the First Amendment Effective Date, in form and substance reasonably acceptable to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching a copy of (i) each Organizational Document of each Loan Party, certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing this Amendment, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of this Amendment and the Loan Documents to which it is a party, in each case, certified as of the First Amendment Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, as applicable;
(g) The Administrative Agent shall have received a certificate of the chief financial officer or treasurer (or other comparable officer) of Holdings certifying the solvency, after giving effect to this Amendment and assuming the Supplemental Term Loans have been fully funded on the First Amendment Effective Date, of Holdings and its Subsidiaries on a consolidated basis in substantially the form of Exhibit E to the Amended Credit Commitment Reduction Agreement;
(h) The Administrative Agent shall have received the executed legal opinion (addressed to the Administrative Agent, the Lenders and the Issuing Banks and dated the First Amendment Effective Date) of 33.33% (i) ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, and (ii) ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, Georgia counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(i) The Administrative Agent shall have received at least two (2) Business Days prior to the First Amendment Effective Date all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least five (5) Business Days prior to the First Amendment Effective Date by the Administrative Agent required by regulatory authorities under applicable Anti-Money Laundering Laws, including the USA PATRIOT Act and other “know your customer” rules and regulations; and
(j) After giving effect to this Amendment, to the Supplemental Revolving Commitments and to the Supplemental Term Loans (assuming such Supplemental Term Loans have been fully funded on the First Amendment Effective Date) and any simultaneous addition of any new U.S. Revolving Lenders pursuant other Loans or credit extensions to be made to the Borrower on the First Amendment Effective Date, the Borrower is in pro forma compliance with the financial covenant set forth in Section 2.6 6.10 of the Existing Amended Credit Agreement) will be not less than $700,000,000Agreement as of the last day of the most recent Test Period.
Appears in 1 contract
Sources: Credit Agreement (Blue Bird Corp)
Conditions to Effectiveness of Amendment. This The effectiveness of the terms of this Amendment shall become effective on the date (the “First Amendment Effective Date”) on which all be subject to satisfaction of the following conditions precedent have been satisfied or waived:(the date upon which this Amendment becomes effective, the “Second Amendment Effective Date”):
(ia) the General Administrative Agent shall have received a counterpart of this Amendment, duly executed and delivered by a duly authorized officer of each of (i) the U.S. Top Borrower, the other Borrowers(ii) each Co-Borrower, (iii) ▇-▇▇▇-▇▇▇▇▇▇, S.R.L., a Costa Rican limited liability company (Sociedad de Responsabilidad Limitada) with corporate identification number ▇-▇▇▇-▇▇▇▇▇▇, and ▇-▇▇▇-▇▇▇▇▇▇, S.R.L., a Costa Rican limited liability company (Sociedad de Responsabilidad Limitada) with corporate identification number ▇-▇▇▇-▇▇▇▇▇▇ (clause (iii) collectively, the Majority Lenders and Extending Lenders to “Costa Rican Guarantors”), (iv) each other Loan Party, (v) the extent required by clause Administrative Agent, (vi) below; provided that any each Revolver Increase Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agentand (vii) each Revolving Lender;
(iib) the General Borrowers shall have (i) paid, or caused to have been paid, to the Lead Arranger, the Administrative Agent shall have received an executed Acknowledgment and Consent, the Revolver Increase Lenders all fees and other amounts due and payable in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of connection with this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal date hereof and (iii) to 1.00% of such Term Lender’s outstanding Term Loans on the First extent invoiced at least three Business Days prior to the Second Amendment Effective Date (it being agreed that or such shorter period as the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to Top Borrower may reasonably agree), paid or reimbursed the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York counsel to the Administrative Agent, and Dentons ▇▇▇▇▇ ▇▇▇▇▇ Rica Limitada, Costa Rican counsel to the Administrative Agent) required to be paid or reimbursed or paid by any Loan Party hereunder or under any other Loan Documentpursuant to Section 10.04 of the Existing Credit Agreement;
(ivc) the General representations and warranties contained in Section 6, shall be true and correct in all material respects on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, except that any such representation or warranty qualified by materiality or as to Material Adverse Effect shall be true and correct in all respects as so qualified;
(d) immediately prior to and after giving effect to this Amendment and the transactions contemplated hereby, no Event of Default shall have occurred and be continuing;
(e) the Administrative Agent shall have received a certificate, dated the Second Amendment Effective Date and signed by a Responsible Officer of the Top Borrower, certifying as to the representations and warranties in Section 6(b) and (c);
(f) the Administrative Agent shall have received an amendment or joinder to the Guaranty joining (i) the Costa Rican Co-Borrower as a Guarantor of the Guaranteed Obligations (as defined in the Guaranty), other than the Revolving Loan Obligations of the Costa Rican Co-Borrower, and (ii) each Costa Rican Guarantor of the Guaranteed Obligations;
(g) the Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment Amendment, the Amended Credit Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(vh) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date such documents and has taken such other steps in connection with the redemption of the 2009 Notes certifications as the General Administrative Agent may reasonably require; andrequire to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where such Person is qualified to do business;
(vii) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a solvency certificate, certifying, as of the Tranche A U.S. Revolving Credit Commitments on the First Second Amendment Effective Date (Date, to the solvency of the Top Borrower and its Subsidiaries on a consolidated basis after giving effect to this Amendment and the minimum Revolving Credit Commitment Reduction transactions contemplated hereby, from the chief financial officer or another officer with equivalent duties of 33.33% and any simultaneous addition the Top Borrower in respect of any new U.S. Revolving Lenders the Top Borrower substantially in the form delivered to the Administrative Agent on the Closing Date pursuant to Section 2.6 of the Existing Credit Agreement;
(j) will the Administrative Agent shall have received favorable opinions of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, corporate counsel to the Loan Parties, (ii) ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as Canadian counsel to the Canadian Loan Parties, and (iii) ▇▇▇▇▇, Costa Rican counsel to the Costa Rican Loan Parties, in each case addressed to the Administrative Agent and the Lenders; and
(k) the Top Borrower and the Co-Borrowers shall have provided or caused to be not less than $700,000,000provided the documentation and other information to the Administrative Agent and the Lenders that are reasonably required by the applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation, in each case, at least three Business Days prior to the Second Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Pursuit Attractions & Hospitality, Inc.)
Conditions to Effectiveness of Amendment. This Amendment The effectiveness of the amendments set forth in Section 2 hereof shall become effective occur on the date (of the “First Amendment Effective Date”) on which all satisfaction of the following conditions precedent have been satisfied or waived:(such date, the “Thirteenth Amendment Effective Date”):
(a) (i) the General Borrowers, each other Loan Party and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) each Exchanging Revolving Lender shall have executed and delivered to the Administrative Agent a Revolving Lender Consent, and (iii) each Additional Revolving Lender, the Borrower Representative and the Administrative Agent shall have executed and delivered to the Administrative Agent a Revolving Credit Facility Joinder;
(b) each of the representations and warranties contained in Section 6 of this Amendment shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Thirteenth Amendment Effective Date;
(c) at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Thirteenth Amendment Effective Date (including the incurrence of the Incremental Revolving Facility), no Default or Event of Default exists;
(d) the Administrative Agent shall have received a counterpart of this Amendmentcertificate, executed in form and delivered substance reasonably acceptable to the Administrative Agent, dated the Thirteenth Amendment Effective Date and signed by a duly authorized officer Responsible Officer of the U.S. Borrower, Borrower Representative and confirming compliance with the other Borrowers, conditions set forth in Sections 5(b) and 5(c) hereof;
(e) the Majority Lenders and Extending Lenders Administrative Agent shall have received a solvency certificate dated as of the Thirteenth Amendment Effective Date in substantially the form of Exhibit H of the Amended Credit Agreement from a Financial Officer of the Parent certifying as to the matters set forth therein;
(f) the Administrative Agent shall have received each Revolving Credit Note (to the extent requested at least three Business Days prior to the Thirteenth Amendment Effective Date);
(g) no later than three (3) days in advance of the Thirteenth Amendment Effective Date, the Administrative Agent shall have received all documentation and other information reasonably requested by it in writing at least 10 days in advance of the Thirteenth Amendment Effective Date, which documentation or other information 16 Orion - Thirteenth Amendment to the Credit Agreement is required by clause regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(vih) below; provided that any Lender may signify its consent the Administrative Agent shall have received a certificate dated as of the Thirteenth Amendment Effective Date from a Responsible Officer of the Borrower Representative, certifying compliance with Section 6.13 of the Existing Credit Agreement;
(i) the Administrative Agent shall have received, on behalf of itself and the Lenders on the Thirteenth Amendment Effective Date, a customary written opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special counsel for Parent, the Borrowers and each other Loan Party (A) dated the Thirteenth Amendment Effective Date, (B) addressed to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent, the Amendment Arranger and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and the Amendment Arranger covering such matters relating to this Amendment;
(j) the Bookrunner and Mandated Lead Arranger shall have received all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Bookrunner and Mandated Lead Arranger, for which invoices have been presented to the Parent at least three Business Days prior to the Thirteenth Amendment Effective Date, on or before the Thirteenth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
(k) the Administrative Agent shall have received:
(i) all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Administrative Agent, for which invoices have been presented to the Parent at least three (3) Business Days prior to the Thirteenth Amendment Effective Date, on or before the Thirteenth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
(ii) for distribution to each Existing Revolving Lender, an amount equal to the General Administrative Agent shall have received an executed Acknowledgment sum of (x) the principal of and Consent, unpaid interest accrued to the Thirteenth Amendment Effective Date on the outstanding Revolving Loans of such Existing Revolving Lender and (y) all fees and other amounts owing to or accrued for the account of such Existing Revolving Lender under the Existing Credit Agreement in respect of such Revolving Loans and such Existing Revolving Lender’s Revolving Credit Commitments (including any amounts under Section 3.06 of the form set forth at the end of this Amendment, from each Loan Party signatory theretoExisting Credit Agreement);
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Incremental Revolving Lender which has that shall have delivered (by facsimile or otherwise) an executed counterpart of this Amendment signature page to the General Administrative Agent a Revolving Lender Consent or a Revolving Credit Facility Joinder (as applicable), and released such signature page, on or prior to the First Amendment Effective Date12:00 p.m. (New York time) on October 6, 2023, a non-refundable special new money fee in an amendment fee amount equal to 1.00(i) 0.70% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined multiplied by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (held by such Incremental Revolving Lender immediately after giving effect to the minimum transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Bookrunner and Mandated Lead Arranger; (ii) 0.60% multiplied by the principal amount of the Revolving Credit Commitment Reduction of 33.33Commitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Mandated Lead Arranger; (iii) 0.50% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 multiplied by the principal amount of the Existing Revolving Credit AgreementCommitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is a Lead Arranger and (iv) will be not less than $700,000,0000.40% multiplied by the principal amount of the Revolving Credit Commitments held by such Incremental Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment to the extent such Incremental Revolving Lender is an Arranger.
Appears in 1 contract
Sources: Credit Agreement (Orion S.A.)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Third Amendment Effective Date”) on which all upon satisfaction of the following conditions precedent in a manner reasonably satisfactory to the Administrative Agent and the Lenders:
(a) The Administrative Agent shall have been satisfied received executed counterparts of the following documents and instruments or waivedsuch other items as are described below, as the case may be:
(i) this Amendment, duly executed and delivered by the General Initial Borrower, Holdings, the Administrative Agent and each of the Lenders;
(ii) a Consent and Reaffirmation, in the form attached hereto as Annex C, duly executed and delivered by the Initial Borrower, Holdings and each other Credit Party;
(iii) a fee agreement, in form and substance acceptable to the Administrative Agent, duly executed and delivered by the Initial Borrower, Holdings, each other Credit Party and the Affiliate of the Administrative Agent party thereto (the “Amendment Fee Letter”);
(iv) a Notice of Borrowing in respect of the Third Amendment Term Loans;
(v) if requested by the Lender with the Third Amendment TL Commitment, a Third Amendment Term Note evidencing the Third Amendment Term Loans advanced on the Third Amendment Effective Date;
(vi) the Holdings Assumption Agreement, duly executed and delivered by the parties signatory thereto;
(vii) the Benchmark Subordination Agreement, duly executed and delivered by the parties signatory thereto;
(viii) a solvency certificate from the chief executive officer or chief financial officer of Holdings in substantially the form of Exhibit 2.1(c) to the Credit Agreement; and
(ix) a certificate of a Responsible Officer of Crosslayer, Inc., a newly organized subsidiary of Holdings (“Crosslayer”), and each Credit Party (other than the Designated Subsidiaries) dated the Third Amendment Effective Date, certifying (A) that attached thereto is (1) a true and complete copy of a certificate as to the good standing of Crosslayer and each Credit Party (in so-called “long-form” if available), as of a recent date, from the Secretary of State of the state of its organization (or other applicable Governmental Authority to the extent available), (2) a true and complete copy of each Organization Document of Crosslayer and each Credit Party certified as of a recent date by the Secretary of State of the state of its organization (or, if any such Organizational Document of a Credit Party has not been amended, restated, supplemented, or otherwise modified since the Closing Date, certifying the absence of any amendments, restatements, supplements, or modifications to such Organizational Documents of such Credit Party), (3) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of Crosslayer and each Credit Party authorizing the execution, delivery and performance of this Amendment and each other document or instrument required to be delivered in connection herewith, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (4) a true and complete copy of the Benchmark Purchase Agreement and each other document or instruments to be executed and delivered in connection with the consummation of the Benchmark Acquisition, and (B) as to the incumbency and specimen signature of each officer executing this Amendment or any other document or instrument delivered in connection herewith on behalf of Crosslayer or any Credit Party (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate in this clause (ix)).
(b) Evidence reasonably satisfactory to the Administrative Agent that, in accordance with the Benchmark Purchase Agreement, the Benchmark Acquisition has been consummated (or will be consummated concurrently) with the funding of the Third Amendment Term Loans.
(c) There shall not exist any judgment, decree or order of any Governmental Authority which would prevent the performance of this Amendment, the Credit Agreement (as modified hereby), the Benchmark Acquisition or the transactions contemplated hereby or declare unlawful this Amendment or the other transactions contemplated hereby.
(d) The Administrative Agent and the Lenders shall have received all documentation and other information requested by the Administrative Agent or any Lender and required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.
(e) All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance satisfactory to the Administrative Agent. It shall be a condition subsequent to the Third Amendment Effective Date that each of the following conditions subsequent are satisfied (and the failure to satisfy such conditions subsequent shall constitute an immediate Event of Default):
(a) the Administrative Agent shall have received (unless extended by the Administrative Agent in the exercise of its sole discretion):
(i) no later than April 21, 2017:
(A) amended and restated Schedules 3.18, 3.19, 3.25, 5.1, 5.4, 5.5, and 5.9 to the Existing Credit Agreement (giving pro forma effect to the Benchmark Acquisition), each of which shall be acceptable to the Administrative Agent and the Lenders;
(B) a Perfection Certificate, duly executed and delivered by (A) Benchmark, (B) Crosslayer, and (C) each Credit Party;
(C) the Benchmark Assumption Agreement, duly executed and delivered by the parties signatory thereto;
(D) a joinder agreement (in the form attached to the Guaranty and Security Agreement) duly executed and delivered by Benchmark, each other Credit Party thereto and the Administrative Agent;
(E) a joinder agreement (in the form attached to the Guaranty and Security Agreement) duly executed and delivered by Crosslayer, each other Credit Party thereto and the Administrative Agent;
(1) a pledge amendment (in the form attached to the Guaranty and Security Agreement) duly executed by Holdings in respect of the Stock of Benchmark acquired with the proceeds of the Third Amendment Term Loans, (2) all certificates evidencing the Stock of Benchmark acquired in the Benchmark Acquisition, accompanied by instruments of transfer or stock powers undated and endorsed in blank, and (3) UCC financing statements in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each United States jurisdiction as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to perfect the Liens created, or purported to be created, by Benchmark pursuant to the Collateral Documents;
(G) a certificate of a Responsible Officer of Benchmark, certifying (A) that attached thereto is (1) a true and complete copy of a certificate as to the good standing of Benchmark (in so-called “long-form” if available), as of a recent date, from the Secretary of State of the state of its organization (or other applicable Governmental Authority to the extent available), (2) a true and complete copy of each Organization Document of Benchmark certified as of a recent date by the Secretary of State of the state of its organization, and (3) a true and complete copy of resolutions duly adopted by the board of directors or similar governing body of Benchmark authorizing the execution, delivery and performance of the Benchmark Assumption Agreement, the Credit Agreement (as supplemented thereby) and each other document or instrument required to be delivered in connection herewith, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (B) as to the incumbency and specimen signature of each officer executing the Benchmark Assumption Agreement or any other document or instrument delivered in connection herewith or therewith on behalf of Benchmark (together with a certificate of another officer as to the incumbency and specimen signature of the Responsible Officer executing the certificate in this clause (F));
(1) a pledge amendment (in the form attached to the Guaranty and Security Agreement) duly executed by Holdings in respect of the Stock of Crosslayer, (2) all certificates evidencing the Stock of Crosslayer, accompanied by instruments of transfer or stock powers undated and endorsed in blank, (3) UCC financing statements in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each United States jurisdiction as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to perfect the Liens created, or purported to be created, by Crosslayer pursuant to the Collateral Documents, and (4) copies of UCC, United States Patent and Trademark Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name Benchmark, Crosslayer or any Credit Party as debtor and that are filed in those state and county jurisdictions in which any property of Benchmark, Crosslayer or any Credit Party is located and the state and county jurisdictions in which Benchmark, Crosslayer or any Credit Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(ii) no later than April 28, 2017:
(A) for the benefit of the Lender with the Third Amendment TL Commitment, the Administrative Agent shall have received a counterpart number of this Amendmentshares of common Stock of Holdings representing an aggregate of 10.0% (determined on a fully diluted basis after giving effect to the consummation of the Benchmark Acquisition and all Stock and Stock Equivalents (or securities convertible into or exchangeable for Stock and\or Stock Equivalents) issued in connection therewith) of the outstanding Stock and Stock Equivalents of Holdings, executed accompanied by supporting evidence (in form and delivered by a substance reasonably acceptable to the Administrative Agent) that the issuance of such shares have been duly authorized officer and issued in accordance with the Organizational Documents of Holdings and all Requirements of Law; and
(B) the Administrative Agent shall have received (for the benefit of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders applicable Persons described therein) all Stock contemplated to be issued pursuant to the extent required by clause Conditional Termination of Redemption Rights Agreement dated on or about the Third Amendment Effective Date among Holdings and the Lenders party thereto;
(viiii) below; provided that any Lender no later than April [●], 2017:
(A) a legal opinion from K&L Gates LLP, designated transactional counsel to Benchmark and the Credit Parties, and from such other counsel as the Administrative Agent may signify its consent reasonably request, each in form and substance reasonably satisfactory to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(iiB) updated certificates evidencing the record ownership of Holdings of all of the issued and outstanding Stock of Benchmark, accompanied by instruments of transfer or stock powers undated and endorsed in blank;
(C) customary insurance certificates and endorsements thereto in form and substance reasonably satisfactory to the Administrative Agent naming the Administrative Agent (on behalf of the Lenders) as an additional insured or loss payee (and mortgagee), as the case may be, under all insurance policies to be maintained with respect to the properties of the Credit Parties (including Benchmark and Crosslayer) forming part of the Collateral; and
(iv) no later than May [●], 2017:
(A) the General Administrative Agent shall have received an executed Acknowledgment Control Agreements in respect of all Deposit Accounts of Benchmark and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent extent not otherwise in effect on or prior to the First Third Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;each Credit Party; and
(ivB) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party documents and instruments as the General Administrative Agent may reasonably require evidencing request to evidence (or further evidence) that the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory has a perfected, first priority Lien in all Collateral, subject only to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000Permitted Liens.
Appears in 1 contract
Conditions to Effectiveness of Amendment. This Amendment shall become effective on as of the date (the “First Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waivedare satisfied:
(ia) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by the General Borrower, each Subsidiary Guarantor, the Issuing Bank and each Lender.
(b) The Administrative Agent shall have received reimbursement for all of its reasonable out-of-pocket costs and expenses in accordance with Section 2.4 hereto.
(c) The Administrative Agent shall have received, for its account and on account of each Lender, all fees in connection with this Amendment in accordance with any fee letter or commitment letter, between the Borrower and ING or the Borrower and any Lender.
(d) The Borrower shall have paid to the Administrative Agent and the Lenders all accrued but unpaid interest as of the date hereof, calculated at the rate set forth in the Credit Agreement (for clarity, without giving effect to the Amendment).
(e) The Administrative Agent shall have received a counterpart favorable written opinion (addressed to the Administrative Agent and the Lenders and dated as of the date hereof) of ▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Obligors, in form and substance reasonably acceptable to the Administrative Agent and covering this Amendment and any other matter as the Administrative Agent may reasonably request (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).
(f) The Administrative Agent shall have received: (i) a certificate, from the secretary of each Obligor, that there has been no change to the organizational documents of each Obligor delivered as of February 22, 2011, (ii) signature and incumbency certificates of the officers of such Person executing this Amendment, (iii) resolutions of the board of directors or similar governing body of each Obligor approving and authorizing the execution, delivery and performance of this Amendment, executed (iv) a good standing certificate from the applicable Governmental Authority of each Obligor's jurisdiction of incorporation, organization or formation and delivered by in each jurisdiction in which it is qualified as a duly authorized officer foreign corporation or other entity to do business, each dated a recent date prior to the date hereof, and (v) such other documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the U.S. BorrowerObligors, the other Borrowers, the Majority Lenders and Extending Lenders to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;
(ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart authorization of this Amendment and any other legal matters relating to the General Obligors, all in form and substance satisfactory to the Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in and its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iv) the General Administrative Agent shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; and
(vi) the General Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 of the Existing Credit Agreement) will be not less than $700,000,000.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Fifth Street Finance Corp)
Conditions to Effectiveness of Amendment. This Amendment shall become effective on the date (the “First Amendment Effective Date”) first Business Day on which all each of the following conditions precedent have been satisfied or waivedis satisfied:
(a) The Administrative Agent shall have received (i) from each Initial Term Lender with a Tranche B-1 Term Exchange Commitment and from Post-Closing Option Lenders having Additional Tranche B-1 Term Commitments equal in principal amount to the General amount of Initial Term Loans held by Non-Exchanging Term Lenders, (ii) from the Administrative Agent and (iii) from the Borrower and each Guarantor, either (x) a counterpart of this Amendment signed on behalf of such party (or a Consent) or (y) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent shall have received from each Additional Tranche B-1 Term Lender (other than Post-Closing Option Lenders) an executed counterpart to the applicable Joinder Agreement.
(c) The Borrower shall have paid to the Administrative Agent, (i) for the ratable account of each Initial Term Lender, a payment equal to 1% of the aggregate principal amount of Initial Term Loans outstanding immediately prior to the Amendment No. 1 Effective Date, whether or not such Initial Term Lender becomes a Tranche B-1 Term Lender.
(d) The Borrower shall have paid to all Non-Exchanging Term Lenders on the Amendment No. 1 Effective Date, simultaneously with the making of Tranche B-1 Term Loans under the Credit Agreement, all accrued and unpaid interest on their Initial Term Loans to, but not including, the Amendment No. 1 Effective Date.
(e) The Administrative Agent shall have received a counterpart of this Amendment, executed and delivered by a duly authorized officer of the U.S. Borrower, the other Borrowers, the Majority Lenders and Extending Lenders written opinion (addressed to the extent required by clause (vi) below; provided that any Lender may signify its consent to this Amendment by instead executing a “lender addendum” in a form as provided by the Administrative Agent;, the Lenders and the Issuing Banks and dated the Amendment No. 1 Effective Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent. Each of Holdings and the Borrower hereby requests such counsel to deliver such opinions.
(f) The Borrower shall have paid (i) the Joint Bookrunners the fees in the amounts previously agreed in writing to be received on the Amendment No. 1 Effective Date and (ii) the General Administrative Agent shall have received an executed Acknowledgment and Consent, in the form set forth at the end of this Amendment, from each Loan Party signatory thereto;
(iii) the General Administrative Agent shall have received (a) for distribution to each Term Lender which has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the First Amendment Effective Date, an amendment fee equal to 1.00% of such Term Lender’s outstanding Term Loans on the First Amendment Effective Date (it being agreed that the amendment fee is payable to a Term Lender only if such Term Lender has delivered an executed counterpart of this Amendment to the General Administrative Agent on or prior to the time that the General Administrative Agent has received executed counterparts of this Amendment from the Majority Lenders, as determined by the General Administrative Agent in its sole discretion) and (b) all other fees and amounts due and payable on or prior to the First Amendment Effective Date for which invoices have been presented, including all reasonable out-of-pocket costs and expenses of the Administrative Agent (including including, without limitation the reasonable fees, charges and disbursements of counsel▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Administrative Agent) required for which invoices have been presented at least three Business Days prior to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;the Amendment No. 1 Effective Date.
(ivg) At the General time of and immediately after giving effect to this Amendment no Default or Event of Default shall have occurred and be continuing.
(h) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority (in relation to a Loan Party constituted under German law not older than 14 days and certified by the relevant commercial register) and in relation to a Luxembourg Loan Party an up-to-date excerpt from the Luxembourg Register in respect of the Luxembourg Loan Party as of the date of this Amendment and a certificate from the Luxembourg Register dated as at the date hereof stating that no judicial decision has been registered with the Luxembourg Register by application of article 13, items 2 to 11 and 13 and article 14 of the RCS Law, according to which the Luxembourg Loan Party would be subject to one of the judicial proceedings referred to in these provisions of the RCS Law including in particular, bankruptcy (faillite), controlled management (gestion contrôlée), suspension of payments (sursis de paiement), arrangement with creditors (concordat préventif de la faillite) and judicial liquidation (liquidation judiciaire) proceedings, (ii) signature and, to the extent such certificates of resolutions or other actionconcept exists, incumbency certificates and/or other certificates of the Responsible Officers of each Loan Party as executing the General Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such it is a party, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party party, setting out, in respect of each Belgian Loan Party, the reasons why the board of directors of that Belgian Loan Party considered that the entry into this Amendment, is of the benefit to that Loan Party, certified as of the Amendment No. 1 Effective Date by its secretary, an assistant secretary or is a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to be a party;the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(vi) To the General extent required and requested by any Additional Tranche B-1 Term Lenders at least three Business Days prior to the Amendment No. 1 Effective Date, the Administrative Agent shall have received evidence all documentation and other information about the Loan Parties as shall have been requested in writing by such Additional Tranche B-1 Term Lenders that they shall have reasonably satisfactory to it that determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. Borrower has given an irrevocable call notice to redeem all 2009 Notes outstanding on the First Amendment Effective Date and has taken such other steps in connection with the redemption of the 2009 Notes as the General Administrative Agent may reasonably require; andUSA Patriot Act.
(vij) the General The Administrative Agent shall have received evidence reasonably satisfactory to it that the aggregate principal amount a certificate signed by a Responsible Officer of the Tranche A U.S. Revolving Credit Commitments on the First Amendment Effective Date (after giving effect Borrower certifying as to the minimum Revolving Credit Commitment Reduction of 33.33% and any simultaneous addition of any new U.S. Revolving Lenders pursuant to Section 2.6 accuracy of the Existing Credit Agreementrepresentations set forth in paragraphs (b) will be not less than $700,000,000and (c) of Section 2 hereof.
(k) The Administrative Agent shall have received a Consent to this Amendment from each Revolving Lender.
Appears in 1 contract